^     Si 


^^WE•UNIVER5/>J^       vj^iUiAMbfcUj;*         ^0F-CA1IF(M5^ 


JOURNAL  ENTRIES 

UNDER  THE  CODES   OF 

CIVIL,  PROBATE,  AND   CRIMINAL 
PROCEDURE 


OF  THE 


STATE   OF   OHIO 


ALSO 


UNDER  The  several  statutes  regulating  tue  more 

COMMON  proceedings,  WITH  NOTES  OF  THE  DECISIONS 

OF  THE  COURTS  OF  OHIO,  AND  OTHER   STATES 

TOUCHING  JOURNAL  ENTRIIJS  AND 

AN  APPENDIX  OF  BILLS   OF  EXCEPTIONS 


BY  EDWARD   N.  WILD 

OF  THE  CINCINNATI   BAH 


THIRD  EDTTIOS,   liFVISlKn. 


CINCINNATI 

ROBERT   CLARKE   &   CO 

1891 


PREFACE. 


The  importance  of  the  subject  of  journal  entries  will  not 
be  questioned.  A  considerable  departure  has  been  made  in 
the  modern  practice,  and  under  the  codes  of  procedure,  from 
the  forms  and  style  used  in  journal  entries  under  the  com- 
mon law  system.  Our  codes  have  done  away  with  much  of 
the  elaborate  practice  and  complicated  form  of  the  common 
law,  and  introduced  in  their  stead  the  simplicity  of  short 
forms  and  ordinary  language,  but  have  in  no  way  lessenecl 
the  necessity  for  precision  and  exactness.  And  while  any 
ordinary  and  precise  language  will  be  sufficient  to  express  an 
order  or  judgment  of  the  court,  a  system  of  forms  has  been 
gradually  elaborated  from  the  practice  under  the  codes,  and  is 
useful  in  creating  uniformity  and  in  saving  the  time  necessary 
to  a  new  investigation  upon  the  making  of  every  entry ;  and 
it  is  with  the  view  of  saving  this  time  and  labor  to  attorneys 
and  clerks  of  courts,  rather  than  with  the  expectation  of  intro- 
ducing to  them  anything  new,  that  this  work  is  undertaken. 

To  make  the  work  complete,  I  have  endeavored  to  present 

every  entry,  or  at  least  a  form  for  every  entry,  authorized  by 

the  codes  and  statutes  referred  to.     Of  course,  every  specific 

entry  that  may  sometimes  be  required  can  not  be  given,  but  it 

is  believed  that  nearly  all  may  be  made  by  slightly  modifying 

those  given. 

(Hi) 


IV  PREFACE. 


In  general,  only  such  notes  of  decisions  have  been  ap- 
pended as  touch  journal  entries,  and  not  those  on  practice  at 
large.  I  have  only  gone  out  of  the  State  for  such  decisions 
where  none  applicable  are  found  here,  and  when  those  of 
another  State,  generally  'New  York  or  Kansas,  are  applicable 
in  a  particular  manner. 

It  has  been  my  particular  endeavor  to  make  the  forms 
practical,  and  a  great  number  of  them  have  been  obtained 
by  taking  those  actually  drawn  by  attorneys  of  standing  at 

the  Ohio  bar. 

E.  K  WILD. 
Cincinnati,  Ohio,  July  1,  1876. 


PREFACE  TO  REVISED  EDITIOIS". 


The  revised  statutes  of  1880  made  so  many  changes  in  the 
codes  of  procedure,  by  alterations,  additions,  and  amend- 
ments, that  a  new  edition  of  Journal  Entries  became  neces- 
sary. The  work  has  been  very  much  enlarged,  containing 
now  about  one  thousand  entries,  embracing  many  under 
statutes  not  introduced  into  the  former  work.  The  same 
order  has  been  followed  as  under  the  former  codes. 

In  addition  to  the  former  entries,  I  have  added  entries  in 
the  Probate  Courts,  making  the  work  much  more  complete. 

I  desire  to  acknowledge  the  courtesy  of  Hon.  Jacob  Bur- 
net, lately  Judge  of  the  Court  of  Common  Pleas  of  Hamil- 
ton county,  in  giving  me  the  benefit  of  his  legal  ability  on 
many  points  of  practice  under  the  revised  statutes.  Also, 
of  Florien  Giauque,  Esq.,  editor  of  "Raff's  Guide,"  and 
author  of  "  Manual  for  Guardians,"  etc. ;  and  of  Daniel 
Herider,  the  very  efficient  Chief  Deputy  Clerk  of  the  Pro- 
bate Court  of  Hamilton  county,  in  rendering  me  valuable 
assistance  in  preparing  entries  for  the  Probate  Court. 

E.  N.  Wild. 
Cincinnati,  February  28,  1883. 


CONTENTS. 


(Ill  the  Titles,  Chapters,  Articles,  anil  Subdivisions,  this  work  follows  the  Revised 

Statutes.] 

Preliminary  Forms ^ 

In  the  District  Court 1 

In  the  Court  of  Common  Pleas 5 

TITLE  I. 

Procedure    in    the    Courts  of  Common  Pleas  and  Superior 
CoLTiTS,  and  in  District  Courts  on  appeal. 

Division  I.     General  and  Preujunary  Provisions 12 

Chap.  2.  Specific  duties  of  certain  officers 12 

Division  II.     Commencement  of  Action.? — Jurisdiction — Issce. 

Chap.  1.  Form  of  action 13 

3.  Parties  to  action 14 

4.  Joinder  of  actions 22 

5.  Where  action  to  be  brought 24 

6.  Jurisdiction  by  Summons,  Publication,  or  Appearance..  25 

Sub.  1.  Actual  Service 25 

2.  Constructive  Service 25 

7.  Pleadings 27 

Sub.  2.  Petition 27 

3.  Demurrer 27 

4.  Answer  and  Cross-petition 30 

6.  General  Eules  of  Pleading 30 

7.  Mistakes  and  Amendments 34 

8.  Motions 37 

Division  III.     Trial 38 

Chap.  1.  Provisions  Preliminary 

Sub.  3.  Tender  and  offer  to  confess  Judgment 38 

4.   Revivor  of  actions 43 

2.  Conduct  of  the  Trial 47 

Sub.  1.  Summoning  and  impaneling  the  jurv 47 

(vii.) 


Vlll  CONTEXTS. 

Sub.  2.  Trial  bj-^  jury  and  Verdict 5& 

3.  Trial  by  the  Court 62 

4.  Trial  by  Referees 64 

5.  Trial  by  Master  Commissioner 70 

6.  Trial  on  Appeal 75 

Chap.  3.  Evidence 83 

Sub.  2.  Means  of  securing  attendance 83 

3.  Modes  of  taking  testimony 86 

4.  Admission  and  inspection  of  documents 87 

5.  Variance 89 

4.  Exceptions 91 

5.  New  Trial 92 

DlVlSIOX  IV.       JUDGMEXT 94 

Chap.  1.  Judgment  in  general 95 

2.  Judgment  upon  failure  to  answer 122 

3.  Judgment  by  confession 130 

4.  Manner  of  giving  and  entering  judgment 133 

5.  Judgment  for  costs  and  its  enforcement 141 

6.  New  trial  and  other  relief  after  judgment 143 

7.  Eevivor  of,  and  new  parties  to  judgment 146 

Division  V.     Exforce.mext  of  Judgment 151 

Chap.  1.  Execution 151 

Sub.  2.  Execution  against  property 151 

3.  Exemption  from  execution 158 

5.  Execution  against  the  person 158 

6.  Privilege  from  arrest 159 

2.  Proceedings  in  aid  of  execution 159 

Sub.  1.  By  Civil  action 159 

3.  By  examination  of  debtor 162 

4.  By  attachment 174 

Division  VI.     Provisional  Remedies 175 

Chap.  1.  Arrest  and  Bail 175 

2.  Attachment 17/ 

Sub.  3.  Execution  and  return  thereof 177 

4.  Disposition  of  attached  ^jroperty 178 

5.  Proceedings  upon  attachment 179 

6.  General  provisions 185 

3.  Attachment  before  debt  due •••  187 


CONTENTS.  IX 

Chap.  4.    Injunction 188 

5.  Receivership  and  other  provisional  remedies J  92 

Division  VII.     Special  Proceedings 197 

Chap.  1.  Amercement 197 

2.  Arbitration 200 

3.  Bastardy 202 

4.  Contempts  of  Court 200 

5.  Dissolution  of  Corporations 210 

6.  Divorce  and  Alimony 214 

7.  Dower 222 

8.  Habeas  Corpus 231 

9.  Partition 233 

10.  Real  actions 247 

Sub.  1.  To  quiet  title  and  recover  possession 247 

2.  Occupying  claimant 254 

3.  To  complete  real  contracts 258 

'  4.  To  sell  entailed  and  other  estates 260 

11.  Replevin 26a 

12.  Sureties — Rights  and  Remedies  of 281 

13.  Taxes  and  assessments — Relief  against  illegal 2S2 

14.  To  change  name 283 

15.  To  contest  will 285 

16.  To  cure  certain  defects,  errors,  and  omissions 286 

17.  To  Perpetuate  Testimony 287 

19.   Wreckmasters 288- 

TITLE  11. 
Pkocedure  in  Probate  Court. 
Chap.  1.  Wills 290 

2.  Executors  and  Administrators 303 

3.  Guardians  and  Trustees 349 

4.  Insolvent  Debtors 3gg 

7.  General  Provisions , 3g3 

8.  Appropriation  of  Property 335 

Miscellaneous — 

Adoption  of  Infants 392 

Insane  Person 393 

Justices  of  the  Peace^ 393 

Partnerships 394 


CONTENTS. 

TITLE  IV. 
Error,  Mandamus,  and  Quo  Warranto. 

Chap.  1.  Jurisdiction  and  procedure  in  error 397 

2.  Mandamus 406 

3.  Quo  Warranto 410 

Miscellaneous  Proceedings. 

1.  Actions,  pending  proceedings  in  bankruptcy 417 

2.  Assessment  for  street  Improvement 420 

3.  Chattel  Mortgage 423 

4.  Conveyance  of  Real  Estate 423 

5.  Foreign  Judgment 426 

6.  Leasehold  estate 426 

7.  Married  Women 428 

8.  Mechanics'  Lien.. 434 

9.  Naturalization 435 

10.  Removal  and  Reservation  of  Cases 437 

11.  Specific  Performance 438 

12.  Stockholders' Liability 439 

13.  Vendor's  Lien 440 

14.  Vesting  Property  in  Trustees 441 

15.  Wills 442 

16.  Forms  of  Oaths 444 

Penal. 

TITLE  II. 

Criminal  PROCEDURt:. 
Chap.  1.  Proceedings  to  prevent  crime 447 

2.  Arrest,  Examination,  Bail,  and  Commitment 451 

3.  The  Grand  Jury  and  its  Proceedings 457 

4.  Indictment  and  Proceedings  thereon 462 

5.  Proceedings  between  indictment  and  trial 463 

6.  Trial,  and  proceedings  incident  thereto 470 

7.  Verdict  and  Judgment  and  Proceedings  thereon 47") 

8.  New  trials,  motionsin  arrest  and  error 484 

Oaths 488 


CONTENTS.  XI 

In  the  Supkrior  Court  of  Cincinnati 490 

APPENDIX. 

Bill  of  Exceptions 493 

Mandates.. 50.3 

Fractice,  Pleadings,  and  Journal  Entries  under  the  Act  for  the  Res- 
toration OF  Lost  Records 504a 


ABBREVIATIONS  USED  IN  THIS   WORK. 


\LA. — Alabama  Reports. 
.^  L.  R. — American  Law  Register. 

B.  R. — Bankrupt  Rej^ister. 

B.  MON. — Ben  Monroe,  Kentucky. 
BEN. — Benedict's  Reports. 

COW. — Cowen's  Reports,  New  York. 

C.  S.  C.  R. — Cincinnati  Superior  Court  Reporter. 
C.  L.  N. — Chicago  Legial  News. 

CAL. — California  Supreme  Court  Reports. 

D. — Disney's  Reports  of  the  Superior  Court  of  Cincinnati. 

H. — Handy's  Reports  of  the  Superior  Court  of  Cincinnati. 
HOW.  PR. — Howard's  Practice  Reports,  New  York. 

KAN. — Kansas  Supreme  Court  Reports. 

L.  G. — Law  Gazette. 

LA.  AN. — Louisiana  Annual  Reports. 

ME. — Maine  Supreme  Court  Reports. 

PITTS.  L.  J.— Pittsburg  Legal  JonrnaL 

s.  c. — Same  Case. 

S.  C.  R. — Superior  Court  Reporter. 

S. — Sayler's  Statutes 

S    and  C. — Swan  and  Critchfield. 

VES. — Vesey's  Reports. 

W. — Wright's  Reports,  Ohio. 
W.  L.  M. — Western  Law  Monthly. 
WEND.— Wendell's  Reports,  New  York. 
W.  L.  J. — Western  Law  Journal. 


JOURNAL  ENTRIES 


UNDER  THE 


CODE  OF  CIVIL  PROCEDURE  OF  OHIO, 


PRELIMINARY  FORMS. 

I.  IN  THE  CIRCUIT  COURT. 
II.  IN  THE  COURT  OF  COMMON  PLEAS. 


I.  IN  THE  CIRCUIT  COURT, 

I.  Opening  a  regular  term. 
II.  Opening  a  special  term. 

III.  Closing  a  term. 

IV.  Continuing  a  regular  term. 
V.  Daily  sessions. 

I.  Opening  a  regular  term. 

The  regular  term  of  the  Circuit  Court  may  be  opened  as  follows : 

The  State  of  Ohio,  \ 

County  of  ,  /  ^^• 

This   preset)t   tern  of  the   Circuit  Court,  in  and  for  the 

county  of ,  in  the  first  judicial  circuit  of  the  State  of 

Ohio,  held  in  the  court-house  in  the  city  of ,  county  and 


^  PUELIMIXAIIV   FUKMS. 

state  aforesaid,  was  begun  on  the day  of ,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  — — . 
Present: 

Hon.  a.  B., 
Hon.  C.  D., 
Hon.  E.  F., 

Judges  of  the  Circuit  Court  in  the  First 
Judicial  Circuit  of  Ohio. 
Hon.  a.  B.,  presiding. 
G.  H.,  Esq., 

Sheriff  of County,  Ohio. 

C.  B.,  M.  D., 

Coroner  of County,  Ohio, 

Attest : 
W.  M.  T., 

Clerk  of  the  Circuit  Court  of County,  Ohio. 

By  F.  M., 
Deputy. 

II.  Opening  a  special  term. 

The  order  for  a  special  term  authorized  by  section  450,  82  O.  L. 
21,  should  be  put  upon  the  journal  for  preservation;  and  the  record 
may  be  as  follows,  entered  upon  the  journal  of  the  special  term  at 
opening : 

The  State  of  Ohio,  "( 

County  of ,  /  ^^'• 

This  special    term   of  tlie   Circuit   Court,   in    and   for   the 

county  of  ,  in  the  first  judicial  circuit  of  the  State  of 

Ohio,  held  in  the  court-house  in  the  city  of ,  county  and 

state  aforesaid,  was  begun  on  the  (la\"   of  ,  in  the 

year  of  our  Lord  one  thousand  eight  liundred  and  ,  after 

thirty  days  previous  notice  of  the  same  being  given  in  said 
county,  according  to  law,  in  pursuance  of  the  following  order 
made  by  the  judges  of  said  circuit,  to  wit : 

"It  appearing  that  there  has  been  a  failure  to  hold  a  pre- 
scribed term  of  the  Circuit  Court  in  the  countv  of  for 

this  year  [or  state  other  sufficient  reason'],  it  is  ordered  that  a 
special  term  of  said  court  be  held  in  the  said  county   of , 


PRELIMINARY  FORMS.  6 

at  the  county  seat  thereof,  beginning  on  the   day    of 

,  A.  D.  18—." 

Present : 

Hon.  a.  B., 
Hon.  C.  D., 
Hon.  E.  F., 

Judges  of  the  Circuit  Court  in  the  First 
Judicial  Circuit  of  Ohio. 
Hon.  a.  B.,  presiding. 
G.  H.,  Esq., 

Sheriff  of County,  Ohio. 

C.  B.,  M.  D., 

Coroner  of County,  Ohio. 

Attest : 
S.  W.  R., 

Clerk  of  the  Circuit  Court  of County,  Ohio. 

By  F.  M.  8., 
Deputy. 

III.  Closing  a  term. 

The  terms  of  the  Circuit  Court,  whether  regular  or  special,  may 
be  closed  with  the  following  formula  : 

It  is  ordered  that  all  causes,  motions,  and  matters  now 
pending  in  this  court,  and  not  otherwise  disposed  of,  be,  and 
the  same  are,  hereby  continued  to  the  next  term  thereof. 

This  present  term  of  this  Circuit  Court  was  begun  on  the 

day  of ,  A.  D.  one  thousand  eight  hundred  and , 

and  continued  from  day  to  day,  and  from  time  to  time,  b}' 

regular  adjournments,  until  this day  of ,  of  the  year 

aforesaid,  and  is  now  adjourned  without  day. 

[Signed,]  , 

Presiding  Judge. 

IV.  Continuing  a  term. 

When  it  is  necessary  to  continue  a  term  of  the  Circuit  Court  bt- 
yond  the  time  allotted  to  a  county,  as  authorized  by  section  450,  82 
O.  L.  21,  make  an  order  on  the  journal  of  the  regular  term  as  fol- 
lows : 

The  business  of  this  court  requiring  a  continuance  of  the 
present  term  beyond  the  time  allotted  to  this  county,  it  is 


4  PRELIMINARY  FORMS. 

hereby  ordered  that  the  term  be  continued  from  day  to  day 
until  further  order. 

V.  Daily  sessions. 

Open  tlie  session  of  each  day,  after  the  first,  as  follows  : 

Tuesday,  January  6,  18 — , 

o'clock  A.  M. 

Court  met  pursuant  to  adjournment. 
Present: 

Hon.  a.  B., 
Hon.  C.  D., 
Hon.  E.  F., 

Judges  of  the  Circuit  Court  in  the 

Ju(iici:il  Circuit  of  Ohio. 
Hon.  a.  B.,  presiding. 

Close  each  day's  minutes  thus  : 

Court  adjourned  to  Wednesday,  January  7,  1875. 
[Signed,] 


Presiding  Judge. 


PRELIMINARY   FORMS.  0 

II. 

PRELIMINARY  FORMS   IX  THE   COURT   OF  COM- 
MON PLEAS. 

I.  ADJOURNED  TERMS. 
II.  SPECIAL  TERMS. 

III.  FORMS  IN  REGULAR  SEPARATE  SESSION. 

IV.  FORMS  IN  JOINT  SESSION. 
V.  FORMS  IN  CHAMBERS. 

VI.  FORMS  IN  VACATION. 


I.  ADJOURNED  TER]\IS  OF  THE  COjVDION  PLEAS  COURT. 

The  order  for  an  adjourned  term  must  be  entered  on  the  journal  of 
the  regular  term,  and  may  be  as  follows : 

Sec.  460.   Order  for  an  adjourned  term  of  court. 

It  being  necessary,  owing  to  tlie  state  of  business  in  this 
court,  it  is  hereby  ordered  that  an  adjourned  term  thereof  be 
held,  for  the  purpose  of  completing  the  business  of  this  reg- 
ular term,  beginning and  continuing  until . 

For  form  of  opening  entry  on  the  journal  of  the  adjourned  term,  use, 
with  proper  modification,  the  form  given  in  case  of  regular  term,  page  7. 
For  opening  and  closing  of  the  daily  sessions,  use  forms  on  page  8. 

Closing  an  adjourned  term. 
Enter  upon  the  journal  as  follows : 

This  adjourned  term  of  the  Court  of  Common  Pleas  of 
County,  Ohio,  was  begun  on  the day  of ,  18 — , 


and  continued  from  day  to  day  and  from  time  to  time  b}^ 

regular  adjournments  until  this day  of ,  18 — ,  and 

is  now  adjourned  without  day. 

[Signed,]  E.  F., 

Judge. 


6  JOURNAL   ENTRIES. 

II.  SPECIAL  TERM  OF  COMMON  PLEAS  COURT. 

Order  for  a  special  term — 

The  order  for  a  special  term  to  be  made  by  the  judge  and  adver- 
tised, may  be  a  general  one ;  or  it  may,  by  section  462,  designate  what 
business  will  be  transacted  thereat,  and  whether  a  jury  or  juries  shall 
be  summoned.  The  statute  does  not  provide  that  this  order  shall  be 
entered  on  the  journal  of  the  court;  but,  for  purposes  of  preservation, 
it  is  better  that  it  should  be.  The  record  may  be  entered  on  the 
journal  of  the  special  term,  as  follows  : 

The  State  of  Ohio,  \  ^^^ 

County  of , }      ' 

This   special   term   of  the    Court   of  Common   Pleas,   in 

county,  Ohio,  held  in  the  court-house  in ,  county 

and  state  aforesaid,  in  pursuance  of  an  order  duly  issued  by 
the  Hon.  C.  D,,  judge  of  said  court,  as  hereinafter  recorded, 

and  by  the  clerk  duly  published,  was  begun  on  the day 

of ,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and  eighty- two. 

Present : 

Hon.  C.  D., 

Judge  of  the  Court  of  Common  Pleas 

of  the Judicial  District  of  Ohio. 

J.  H.,  Esq., 

Sheriff  of CouJity,  Ohio. 

A.  R.,  M.  D., 

Coroner  of County,  Ohio. 

The  order  above  referred  to  is  in  words  as  follows,  to  wit: 
\_Here  copy  the  order  made  by  the  judge.'] 
Attest : 
W.  M.  T., 

Clerk  of  the  Court  of  Common  Pleas  of County,  Ohio. 

By  F.  M., 
Deputy. 

Closing  a  special  term — 

This  special  term  of  the  Court  of  Common  Pleas  was  be- 
gun on  the day  of ,  18 — ,  and  continued  from  day 


PRELIMINARY   FORMS.  7 

to  day,  by  regular  adjournments,  until  this day  of , 

18 — ,  and  is  now  adjourned  without  day. 

[Signed,]  E.  F., 

Judge. 

III.    FORMS  IN  REGULAR  SEPARATE  SESSION  OF  THE 
COMMON  PLEAS  COURT. 

Opening  the  term. 
Closing  the  term. 
Daily  sessions. 
Opening  the  term — 

Each  term  may  be  opened  upon  the  journal  as  follows : 

The  State  of  Ohio, 

'  ^  ss. 


County  of- 


J 


Thig  separate  session  of  the  Court  of  Common  Pleas  of  the 
judicial  district  of  the  State  of  Ohio,  within  and  for  the 


county  of ,  for  the  term  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and ,  held  in  room  No. , 

in  the  court-house  in  the  city  of ,  county  and  state  afore- 
said, was  begun  on  the  first  Monday,  the day  of in 

the  year  aforesaid. 

Present : 

Hon.  E.  F., 

Judge  of  the  Court  of  Common  Pleas 

of  the Judicial  District  of  Ohio. 

J.  H.,  Esq., 

Sheriff  of County,  Ohio. 

A.  R..  M.D., 

Coroner  of County,  Ohio. 

Attest : 

W.  M.  T., 

Clerk  of  the  Court  of  Common  Pleas  of County,  Ohio. 

By  F.  M., 
Deputy. 

Closing  the  term — 
Enter  upon  the  journal  the  following  order : 

It  is  ordered  that  all  cases,  motions,  and  matters  now  pend- 


8  JOURNAL   ENTRIES. 

ing  this  court,  not  otherwise  disposed  of,  be  and  the  same 
are  hereby  continued  to  the  next  regular  term  thereof. 

This  separate  session  of  this  Court  of  Common  Pleas,  for 

the  term  of ,  a.  d.  18 — ,  was  begun  on  the  first  Monday, 

the day  of ,  18 — ,  and  continued  from  day  to  day, 

by  regular  adjournments,  until  this day  of ,  18 — , 

and  is  now  adjourned  without  day. 

[Signed,]  E.  F., 

Judge. 
Daily  sessions — 

Open  the  session  of  each  day,  after  the  first,  as  follows : 

Tuesday^  Janiiary  6,  1875, 

o'clock,  A.  M. 

Court  met  pursuant  to  adjournment. 

Present : 

Hon.  a.  B., 

Judge. 
Close  each  days'  minutes  thus : 

Court  adjourned  to  "Wednesday,  January  7,  1875. 

\_Signed  by  the  judge.~\ 

IV.  FORMS  m  JOINT  SESSION  OF  THE  COMMON  PLEAS 

COURT. 

The  forms  may  be  the  same  as  in  separate  session,  except  that  in 
opening  the  term,  in  courts  having  a  presiding  judge,  say  : 

Present : 

Hon.  M.  F., 

Presiding  Judge  of  the  Court  of  Com- 
mon Pleas  of  the Judicial 

District  of  Ohio. 
Hon.  J.  C, 

Judge  of  the  Court  of  Common  Pleas 

of  the Judicial  District  of  Ohio, 

etc.,  etc. 

So  also,  in  opening  the  days'  session,  the  names  and  titles  of  all  the 
judges   sitting  should  be  given  in  the   form   above.     The   minutes 


PRELIMINARY    FORMS.  9 

of  each  <luy  are  signed  by  the  presiding  judge,  or  as  directed  by  the 
rules  of  court.' 

The  first  entry  in  the  joint  session  minutes  of  Hamilton  County 
in  the  January  term  sliould  be  for  the  appointment  of  the  presiding 
juilL't'  for  tlie  year  and  the  assignments  for  the  different  judges,'  and 
at  otiier  terms  f(jr  the  assignments  of  the  judges. 

V.  FORMS  IX  CHAMBERS. 

In  making  Chamber  entries,  use  the  following  formulary: 

In  Chambers,  January  — ,  18 — . 
Before  the  Hon.  S.  T.,  Judujc  of  the  Comnioii  Pleas  Court 

of  the Judicial  District  of  Ohio. 

[Title.-] 

[Entry.] 

[Signed,]  S.  T., 

Judge. 

If  the  original  order  has  the  signature  of  the  judge,  it  is  unneces- 
sary for  him  to  sign  the  journal. 

VI.  FORMS  IN  VACATIOX. 

There  are  also  certain  entries  which  the  statute  directs  shall  be  made 
by  the  clerk  on  the  journal,  in  vacation,  without  the  order  of  a  judge; 
as  the  entering  of  a  mandate  from  the  Supreme  Court, ^  and  the  dismis- 
sal of  a  case  by  the  plaintiff"  after  the  costs  are  paid.* 

In  these  cases  the  entries  should  be  made  as  foUows  : 

Office  of  the  Clerk  of  the  Courts  of County,  Ohio. 

January  — ,  18 — . 
[Title] 

[Entry.] 

^  As  to  signing  the  journal,  see  post^  page  10. 

2  By  sec.  464.  3  gee.  5239.  *  Sec.  5314,  6th. 


JOURNAL  ENTRIES. 


Journal  entries,  under  the  code  of  this  state,  include  judgments  and 
orders,  and  a  miscellaneous  third  class  of  entries,  including  agreed 
statements,  suggestions  on  the  record,  and  other  like  matters. 

A  judgment  is  the  final  determination  of  the  rights  of  the  parties  in 
an  action/ 

An  order  is  any  direction  of  a  court  or  judge,  made  or  entered  in 
writing,  and  not  included  in  a  judgment.-  A  final  order  is  one  afiect- 
ing  a  substantial  right  in  an  action,  Avhen  such  order,  in  effect,  deter- 
mines the  action  and  prevents  a  judgment,  and  an  order  affecting  a 
substantial  right  made  in  a  special  proceeding,  or  upon  a  summary  ap- 
plication in  an  action  after  judgment.' 

The  term  decree,  which  is  defined  to  be  the  judgment  or  sentence 
of  a  court  of  equity,*  is  scarcely  recognized  by  the  code,  the  decree  be- 
ing included  in  the  general  term  of  judgment. 

All  judgments  and  orders  must  be  entered  on  the  journal  of  the  court, 
and  specify  clearly  the  relief  granted  or  order  made  in  the  action.^  Or- 
ders made  out  of  court  by  a  judge,  either  at  Chambers,  or  when  act- 
ing as  a  kind  of  special  master,  as  such  judge,  must  be  forthwith  en- 
tered by  the  clerk  in  the  journal  of  the  court,  in  the  same  manner  as 
orders  made  in  term.® 

There  is  no  provision  requiring  the  judge  to  sign  the  journal,  and  it 
is  perfectly  valid  without  his  signature.  But,  as  a  means  of  authenti- 
cation, it  is  a  good  practice  for  him  to  sign  each  days'  proceedings. 

Each  separate  journal  entry  must  be  headed  with  the  number  and 
title  of  the  case  in  which  it  is  made.  If  it  be  a  judgment  or  final  or- 
der, the  names  of  the  parties  must  be  set  out  in  full,  and  the  name 
of  the  action  set  out  after  the  title,  as  a  guide  to  the  indexing  clerk — 

thus: 

A.  B.  andH.  D.) 

12,430.  V.  y  Mojicy  only. 

CD.  and  E.  F.j 


iCode,  sec.  5310.  *Bouvier's  Law  Dictionary. 

2  Code,  sec.  5310.  ^  Code,  sees.  5331,  4963. 

3  Code,  sec.  6707.  *  Code,  sec.  4963. 

(10) 


FORM    OF    CIVIL    ACTIONS.  11 

Attorneys,  in  drawing  judgment  entries  and  final  orders  for  tlio 
clerk,  should  hu  particular  in  this,  that  there  maybe  no  error  in  index- 
ing the  judgment. 

The  title  of  a  case  in  which  the  proceedings  are  all  ex  padf,  is,  in 
form,  as  follows : 

111  ilic  matter  of  the  apO 

12,431.         plication  of  A.  B.  for  V 

11  change  of  name.        j 


12  JOURNAL    ENTRIES.  [SEC.  4957- 


TITLE  I. 

PROCEDURE  IN  THE  COURTS  OF  COMMON"  PLEAS 
AND  SUPERIOR  COURTS,  AND  IN  DISTRICT 
COURTS  ON  APPEAL. 

DIVISION  I.  GENEEAL  AND  PRELIMINARY  PROVISIONS. 

II.  COMMENCEMENT    OF    ACTIONS— JURISDICTION- 
ISSUE. 

III.  TRIAL. 

IV.  JUDGMENT. 

V.  ENFORCEMENT   OF  JUDGMENT. 

VL  PROVISIONAL   REMEDIES. 
VII.  SPECIAL  PROCEEDINGS. 


DIVISION  I. — General  and  Preliminary  Provisions. 

CHAPTER  IL 

SPECIFIC  DUTIES  OF  CERTAIN  OFFICERS. 

1.  (Sec.  4967.)     ApjJointment  of  person  to  execute  process. 

[TUle.'] 

It  appearing  to  the  court  that  the  sheriff  and  coroner  of 
this  county  are  interested  in  this  action,  it  is  ordered,  on  mo- 
tion of  the ,  that  E.  F.  be,  and  he  hereby  is,  appointed 

to  execute  [.state  the  order  or  j^rocess,']  with  the  same  powers 
therefor  that  the  sheriff  has  by  law  in  such  cases.  And  it  is 
ordered  that  the  clerk  direct  said  order  [or,  process]  to  the 
said  E.  F.  for  execution. 

By  section  4968,  the  appointment  of  a  person  to  execute  any  process 
or  order  may  be  made  for  aoy  good  cause,  other  than  the  fact  of  the 
sheriff  and  coroner  being  interested  parties.  In  such  case,  modify  the 
above  entry  accordingly. 


-4973,]  FORM   OF   ACTION.  IS 

DIVISION  II. — Commencement  of  Action — Jurisdiction — 

Issue. 

Chap.  I.  Form  of  action. 

III.  Pakties  to  action. 

IV.  Joinder  of  actions. 

V.  Whkre  action  to  be  brought. 

VI.  Jurisdiction  by  summons,  publication,  or  appearance. 
VII.  Pleadings. 


CHAPTER  I. 

FORM  OF  .\CTION. 

2.  (Sec.  4973.)     Order  for  trial  by  jury  of  a  question  of  fact  not  put  in  is- 

sue by  the  pleadings. 

3.  Entry  on  return  of  verdict. 

4.  (Sec.  4973.)     Order  referring  question  to  one  or  more  persons.    ' 

2.  (Sec.  4973.)     Order  for  trial  by  Jury  of  a  question  of  fact  not 
put  in  issue  by  the  pleadings. 
A.  B.) 
14,540.  r.      y 

C.  D.J 

On  motion  of  the herein,  and  it  appearing  to  the  court 

that  it  is  necessary  to  determine  a  question  of  fact  in  this 
case,  not  put  in  issue  by  the  pleadings,  it  is  ordered  that 
the  said  question,  to  wit,  whether  \_here  set  forth  distinctly  and 
jylainly  the  question  to  be  tried^iii  be  determined  by  the  verdict 
of  a  jury,  and  that  the  case  be  set  down  for  hearing  on  the 
day  of 18 — }  And  all  farther  directions  are  re- 
served until  after  the  trial  of  said  issue. 

Order  sending  issue  to  jury.^ 

^This  section,  it  will  he  noticed,  does  not  say  that  the  court  may  impanel 
a  jury  to  try  the  question,  as  is  provided  in  other  cases,  for  instance  in  sections 
•^)00'2  and  7240,  and  would  seem  to  intend  that  the  question  should  go  to  the 
regular  petit  jury.     But  quere? 

2  It  is  well  for  the  clerk  to  annex  to  the  journal  entry  a  brief  summary  of 
the  order  or  judgment,  for  his  convenience  in  reading  the  minutes  before  the 
court,  and  in  posting  to  the  appearance  docket.  But,  as  it  is  not  a  part  of  the 
entrv,  it  will  hereafter  be  omitted  in  this  work. 


14  JOURNAL   ENTRIES.  [SEC.  4973- 

3,  Entry  on  return  of  verdict. 
iTitU:] 

This  day  this  cause  came  on  to  be  heard  on  the  question 
heretofore  ordered  to  be  determined  by  a  jury,  and  thereupon 
came  the  following  named  persons  as  jurors,  to  wit: 
1.  L.  S.,  7.  R.  M., 

etc.  etc. 

"Who  were  duly  impaneled  and  sworn  according  to  law. 
And  thereupon,  after  hearing  the  evidence,  argument,  and 
charge  of  the  court,  and  after  due  deliberation,  the  said  jury 
returned  their  verdict  in  writing,  signed  by  their  foreman, 
as  follows,  to  wit : 

"We,  the  jury,  iind  upon  the  question  submitted  to  us 
that,  etc.,  [state  fact  found]. 

[Signed,]  .  L.  S, 

Foreman. 

4.  (Sec.  4973.)    Order  referring  quesdon  to  one  or  more  jjersons.^ 

[Title.'] 

[As  in  entry  No.  2  to  ^  and,  continue ;]  be  referred  to  R.  S. 
and  R.  F.,with  directions  to  report  to  this  court  without  un- 
necessary delay. 


CHAPTER  ni. 

PARTIES  TO  ACTION. 

Real  party  ix  interest — 

5.  Order  substituting. 

Infant  Parties — 

6.  (Sec.  4998.)     Order  substituting  guardian  for  next  friend. 

Trustee  of  insane  person — 

7.  (Sec.  5000.)     Order  appointing. 

8.  (Sec.  5000.)     Same — for  party  discovered  to  be,  or  becoming,  insane. 

9.  (Sec.  5001.)     Order  removing  trustee  or  guardian  ad  litem. 

9a.  (Sec.  5002.)     Order  for  jury  to  try  question  of  sanity  of  a  party. 

1  For  remarks  and  entries  in  cases  analagous  to  this,  see  page  73        Referetice 
as  before  the  code- 


-4007.]  PARTIES    TO    ACTION.  15 

rjUAKDIAX   AD    I.ITKM. 

I'l.  (Sec.  0IIO4.)     Aifpoiiited  on  minor's  application. 

11.  (Sec.  5004.)     Appointed  on  application  of  other  than  minor. 

NkW    I'AIITIK.S — 

12.  (Sec.  .'iOOG.)     Onler  making,  of  person  claiming  interest,  etc. 

l;'.  (Sec.  500').)     Order  making  party  of  one  nece.«sary  to  complete  doter- 
niinati(jn,  etc. 

14.  (Soc.  501'J.)     llu>b:ind  made  party. 

15.  (Sec.  5(112.)     Ujion  di.-ahility  of  party,  action  continued  against  rep- 

resentative. 
IG.  (Sec.  5012.)     Suhstitnting  of  party  in  case  of  transfer  of  interest. 

17.  (Sec.  5013.)     Order  making  party  of  one  necessary  totcontroversy. 

18.  (Sec.  501.3.)     Dismissal  for  want  of  necessary  party. 

19.  (Sec.  5014.)     Order  making,    in  actions  for  the  recovery  of  real   or 

personal  property. 

20.  (Sec.  5()lt).)     Third  party  claiming  subject  of  action. 

21.  (Sec  5016.)     Order  barring  claim  of  third  party. 

22.  (Sec.  50I().)     Order  substituting  third  jiarty  for  defendant. 

23.  (Sec.  50 IS.)     Party  in  interest  substituted  for  sheritT. 

24.  (Sec.  5074.)     New  party  made  on  counterclaim. 

Real  fakty  in  inteuk.^t — 

Au  actiou  upon  a  promissory  note  which  ha.s  been  tran.sferred  by  the 
payee  can  not  be  maintained  in  his  name.  It  must  be  brought  in  the 
name  of  the  "real  party  in  interest."  An  amendment  may  l)e  made 
by  substituting  the  name  of  the  real  party  in  interest,  and  filing  an 
amended  petition  in  his  name,  ujX)U  payment  of  all  costs,  except  for 
the  issuing  and  service  of  process.- 

As  to  cliauging  the  title  of  a  cause  upon  any  change  of  parties,  it 
was  sai<l  by  the  Superior  Court  of  Cincinnati'  that,  by  section  11(3  of 
tlie  code,  which  provides  that,  "  the  title  of  a  cause  shall  not  be 
changed  in  any  of  its  stages,"  is  meant  that  the  title  or  caption  of  the 
answer  or  demurrer,  or  other  paper  tiled  in  the  cause  after  the  petition, 
shall  be  like  that  of  the  petition — naming  the  plaintiif  first ;  whereas, 
before  the  code,  it  was  usual  to  name  the  party  putting  in  the  plead- 
ing first. 

And  that  it  does  not  conflict  with  section  137,  which  authorizes  the 
court,  in  furtherance  of  justice,  to  amend  any  pleading,  etc.,  by  add- 
ing to  or  striking  out  the  name  of  any  party. 

1  Ansonia  Kubber  Co.  v.  Wolf,  1  Handy,  236. 

'Clawson  v.  Cone,  2  Handy,  67;  Ansonia  Rubber  Co.  v.  Wolf,  1  Handy,  236. 


16  JOURNAL    ENTRIES.  [SEC.  4998- 

5.  Order  substituting  real  party. 
[Title.] 

It  appearing  to  the  court  that  A.  B.,  in  whose  name,  as 
plaintiff,  this  action  was  brought,  had,  before  its  commence- 
ment, assigned  all  his  interest  m  the  subject-matter  of  the 
suit,  and  that  E.  F.  is  the  real  party  in  interest,  it  is,  on  mo- 
tion of ,  ordered  that  the  said  E.  F.  be,  and  he  hereby  is, 

substituted  for  the  said  A.  B.,  as  plaintiff  herein,  upon  pay- 
ment by  said  E.  F.  of  all  costs,  except  for  the  issuing  and 
service  of  process. 

And  the  said  E.  F.  has  leave  to  file  an  amended  petition 
within days. 

Infant  parties — 

6.  (Sec.  4998.)     Order  substituting  guardian  for  next  friend. 
[Title.] 

'Now  comes  E.  F,,  the  guardian  of  the  plaintiff,  A.  B.,  who 
is  a  minor,  and  on  his  motion,  and  for  good  cause  shown,  it 
is  ordered  that  the  said  E.  F.,  guardian,  be,  and  he  hereby 
is,  substituted  for  G.  H.,  by  whom,  as  next  friend  of  the  said 
A.  B.,  this  action  was  brought. 

Trustee  of  insane  person — 

7.  (Sec.  5000.)     Order  appointing . 
[Title.] 

It  appearing  to  the  court  that  the  defendant  in  this  case  is 
manifestly  an  insane  person,  and  that  he  has  no  legal  guard- 
ian [or,  that  his  legal  guardian  has  an  interest  in  this  action 
adverse  to  said  defendant],  it  is  hereby  ordered  that  C.  M.  be, 
and  he  hereby  is,  appointed  trustee  for  said  defendant  in  this 
suit,  to  appear  and  defend  the  same. 

8.  (Sec.  5000.)     Order  appointing,  for  party  discovered  to  be,  or 

becominrj,  insane. 

[Title.] 

ft  appearing  to  the  court  that,  since  the  commencement 

of  this  action,  it  has  been  discovered  that  the ,  A.  D.,  is 

manifestly  an  insane  person  [or,  since  the  commencement  of 
this  action,  the ,  A.  D.,  has  become  insane],  and  that  he- 


-5003.]  PARTIES   TO    ACTION.  17 

lias  no  legal  guardian  \_or,  that  his  legal  guardian  has  an  in- 
terest in  this  action  adverse  to  said  A.  D.],  it  is  ordered  that 
C.  M.  be,  and  he  hereby  is,  appointed  trustee  for  said  A.  D., 
to  appear  and  prosecute  [or,  defend]  this  action  in  his  behalf. 

9.  (Sec.  5001.)     Order  removing/  trustee  or  guardian  ad  litem. 

[Title] 

This  cause  being  heard  on  the  motion  of ,  for  the  re- 
moval of  C.  M.,  who  was  heretofore  appointed  trustee  [or, 

guardian  ad  litem]  for  the ,  A.  D.,  in  this  case,  and  the 

court  being  satisfied  from  the  evidence  adduced  that  the  said 

C.  M.  has  failed  to  discharge  his  duty  as  such  trust-^e  [or, 
guardian  ad  litem],  and  that  the  best  interests  of  the  said  A. 

D.  require  the  removal  of  the  said  C.  M.,  it  is  therefore  or- 
dered that  said  C.  M.  be,  and  he  is  hereby,  removed  from  liis 
relationship  of  trustee  [or,  guardian  ad  litem]  as  aforesaid. 
And  L.  W.  is  hereby  appointed  in  the  place  of,  and  with  all 
the  powers  and  duties  heretofore  possessed  l)y,  the  said  C. 
M.,  as  trustee  [or,  guardian  ad  liton]  of  the  said  A.  D. 

9a.  (Sec.  5002.)  Order  for  Jury  to  try  question  of  sanity  of  a 
party. 

[Title.] 

And  now,  it  being  represented  in  this  case,  that  the  de- 
fendant, CD., is  insane,  and  the  fact  being  disputed  by , 

it  is  ordered  by  the  court,  on  motion  of ,  that  a  jury  be 

impaneled  to  try  the  question ;  and  it  is  ordered  that  said 
jury  be  drawn  from  the  jury-box,^  and  a  venire  issued  as  in 
other  cases,  returnable  on  the day  of ,  18 — . 

On  return  of  venire,  make  entries  similar  to  entries  No.  97,  et  seq. 
After    entry  on  return  of  verdict  finding  sanity  or  insanity,  modify 

entry  No.  8. 

Guardian  ad  litem — 

It  must  appear  that  the  guardian  ad  litem  had  notice  of  his  appoint- 

'  This  section  provides  no  special  method  of  impanelinsc  the  jury,  as  does  sec- 
tion 7240  of  the  criminal  code,  but  this  would  probably  be  a  proper,  but  not  the 
only  method  of  forming  the  jury. 

2 


18  JOURNAL    ENTRIES.  [SEC.  5004- 

ment,  ne  must,  at  least,  do  something  to  signify  his  acceptance  of  the 
appointment.^ 

He  must  be  brought  before  the  court  by  his  voluntary  act  or  by 
process.^ 

10.  (Sec.  5004.)     Apjdointed  on  minor's  application. 
[Title.] 

Kow  comes  L.  W.,  who  is  a  minor  of  tlie  age  of  fourteen 
years,  and,  having  been  served  with  process  herein,  makes  ap- 
plication for  a  guardian  ad  liteiii;  and  thereupon  it  is  ordered 
that  G.  II.  be,  and  he  hereby  is,  appointed  guardian  for  the 
suit,  for  said  minor  defendant. 

And  now  comes  the  said  G.  H.,  and  in  open  court  accepts 
said  appointment. 

11.  (Sec.  5004.)     Appointed  on  application  of  other  than  minor. 
[Title.-] 

It  appearing  to  the  court  that  the  defendant,  H.  A.  W.,  is 
a  minor,*  under  the  age  of  fourteen  years,  and  has  been  duly 
and  legally  served  with  summons  herein  [or,  of  the  age  of 
fourteen  years,  and  has  neglected,  for  twenty  days  from  re- 
turn of  summons  served  upon  him,  to  apply  for  a  guardian 
ad  litem],  on  motion  of  the  plaintiff  [or,  E.  F.,  a  friend  of 
said  minor],  G,  H.  is  hereby  appointed  guardian  for  the  suit, 
for  said  minor  defendant. 

And  now  comes  the  said  G.  H.,  and  in  open  court  accepts 
said  appointment. 

New  parties — 

Kew  parties  may  be  made  after  a  case  has  been  taken  by  appeal  to 
the  District  Court.  " 

For  making  new  parties  upon  revivor  of  action;  see  post,  section 
5149. 

12.  (Sec.  5006.)     Order  making — of  jjerson  claiming  interest,  etc. 
[Title.] 

It  appearing  to  the  court  that  ]^.  P.  claims  an  interest  in 
the  controversy  herein  adverse  to  the  plaintiff,  he  is,  on  mo- 
tion, hereby  made  a  party  defendant  in  this  case. 

'St.  Clair's  Heirs  v.  Smith,  3  Ohio,  355.     ^  Babcock  v.  Camp,  12  Ohio  St.  11. 


-j012.j  parties  to  action.  19 

13.  (Sec.  5006.)     Order  making  jparty  of  one  necessary  to  com- 

plete determination,  ftc. 

[Title] 

It  uppcarin*^  to  the  court  that  X.  P.  is  a  necessary  party 
to  a  complete  determination  of  the  questions  involved  in  this 
<-ase,  he  is,  on  motion,  lierchy  made  a  party  defendant  herein  : 
and  it  is  ordered  that  process  issue  for  him. 

14.  (Sec.  ij012.)     ITtisba lid  made  party. 
[Title] 

It  appearing  to  the  court  that,  since  the  commencement 
of  this  suit,  the  phiintiff,  A.  B.,  [or,  defendant,  C.  D.],  has 

intermarried  with  G.  II. ;    on   motion  of  her  present 

name  of  is  hereby  substituted  for  her  former  name  in 

this  suit,  and  the  said  G.  11.  is  hereby  made  a  party  plaintiff 
[or,  defendant]  with  his  said  wife. 

15.  (Sec.  5012.)      Upon    disability   of  party,   action    continued 

against  representative.^ 

16.  (Sec.  5012.)     Substitution  of  party  in  case  of  transfer  of 

interest. 
[Title.] 

Xow  comes  N.  P.,  by  his  attorney,  and   represents  to  the 

'  It  was  said  by  the  Supreme  Court,  in  the  case  of  Babcock  r.  Camp,  supra,  in 
regard  to  section  39  of  the  old  code,  which  provided  that,  '"in  case  of  the  death 
or  other  disability  of  a  party,  the  court  may  allow  the  action  to  continue  by 
or  against  his  representative  or  successor  in  interest,"  '"the  court  has  power  un- 
der this  section,  in  the  exercise  of  a  sound  discretion,  to  allow  the  action  to  be 
prosecuted  by  or  against  the  representative  or  successor  in  interest  of  a  deceased 
party.  For  this  purpose,  supplemental  pleadings  may  be  allowed,  and  process 
served  as  in  the  commencement  of  an  action.  The  court,  in  the  exercise  of  this 
discretion,  is  governed  by  the  equitable  principle  which  requires  reasonable  dili- 
gence and  good  faith  on  the  part  of  those  invoking  its  action;  and  when  the 
time  has  elapsed  within  which  an  action  can  be  revived  by  a  conditional  order, 
as  provided  for  in  title  13,  chapter  1,  of  the  code,  the  application  for  leave  to 
continue  the  suit  by  supplemental  pleading  may  be  granted  or  refused,  accord- 
ing to  the  nature  and  circumstances  of  the  case."  In  the  revised  statutes,  the 
disabilities  above  named  are  provided  for  in  separate  sections:  section  5149  pro- 
vides for  the  case  of  death,  and  the  section  under  consideration  provides  for 
■"the  disability"  only.  But,  as  every  possible  disability  appears  to  be  specially 
provided  for  by  the  code,  no  entry  is  given  on  this  clause.  If  any  is  required 
modify  entry  No.  87. 


20  JOURNAL    ENTRIES.  [SEC.  5013^ 

court  that  the  interest  of  the  pUxintiff  [or,  defendant]  in  the- 
subject-matter  of  this  action  has  been  transferred  to  him 
during  the  pendency  of  the  suit,  and  the  court  being  satisfied 
thereof,  the  said  N.  P.  is  hereby  substituted  for  the  said 
plaintiff  [or,  defendant],  and  it  is  ordered  that  the  action 
shall  hereafter  be  carried  on  in  his  name. 

17.  (Sec.  5013.)     Order  making  intrty  of  one  necessary  to  con- 

troversy. 

[TUle.] 

It  appearing  to  the  court  that  ^N".  P.  is  a  necessary  party  to 
the  controversy  in  this  case,  for  the  reason  that  he  holds  a 
lien  on  the  property  in  the  petition  described,  similar  to  that 
held  by  the  defendant,  the  said  N".  P.  is  therefore,  on  motion, 
made  a  party  defendant  hereto ;  and  it  is  ordered  that  pro- 
cess issue  for  him. 

18.  (Sec.  5013.)     Dismissal  for  want  of  necessary  party. 
[Tttle.l 

See  entry  No.  215,  post. 

19.  (Sec.  5014.)     Order  making  new  party  in  actions  for  the  re- 

covery of  real  or  personal  property. 
[Title.] 

ISTow  comes  'N.  P.,  by  his  attorney,  and  represents  to  the 

court  that  he  has  an  interest  in  the  property  in  the  petition 

herein  described,  and,  on  his  motion,  he  is  hereby  made  a 

party  defendant  in  this  case. 

20.  (Sec.  5016.)      Third  party  claiming  the  subject  of  action. 
[Title.] 

It  appearing  upon  the  affidavit  of  the  defendant  that  jS".  P. 
has  [or,  makes]  a  claim  to  the  subject  of  this  action,  and  that 
he,  the  said  defendant,  is  ready  to  pay  [or,  dispose  of]  the 
same  as  the  court  may  direct,  it  is  hereby  ordered  that  said 
defendant  pay  over  the  money  in  his  hands,  to  wit,  the  sum 

of  $ ,  [or,  deposit  the  said  property],  so  by  the  said  X.  P. 

claimed,  to  [or,  with]  the  clerk  of  this  court  [or  other  officer], 
for  the  safe  keeping  thereof,  until  further  order.  And  it  is 
ordered  that  the  said  N.  P.  appear  within da^'s  from  the 


-5016.]  PARTIES   TO   ACTIONS,  21 

service  of  tlii.s  order,  and  iiKiintaiii  or  relinquisli  liis  claim 
:i<,''ainst  the  defendaht ;  and  in  default  thereof,  that  ho  be 
barred  of  all  claim  to  said  projierty. 

A  copy  of  this  order  being  served  upon  X.  P.,  if  lie  fails  to  appear 
wiiliin  the  time  limited,  the  court  nuiy  make  an  order  barring  lii.s 
claim,  as  follows: 

21.  (Sec.  5010.)      On/cr  hnrring  claim  of  (/i/'rd  jnnii/. 
[Title.] 

Kow  come  the  parties  hereto,  and  it  appearing  to  the  court 
that  the  said  X.  P.,Avho  claimed  the  property,  the  subject  of 
this  action,  has  failed  to  appear  within  the  time  allowed  by 
tlie  court,  to  prosecute  his  said  claim,  although  duly  served 
with  a  copy  of  said  order;  now,  therefore,  it  is  considered 
and  declared  that  the  said  X.  P.  be,  and  he  hereby  is,  barred 
of  all  claim,  in  i-espect  to  the  subject  of  this  action,  against 
the  defendant  herein. 

But  if  X.  P.  apj)ears,  the  court  shall  order: 

22.  (Sec.  5010.)     Order  substituting  third  paiiij  for  defendant. 
[Title.] 

Xow  comes  X.  P.,  in  compliance  with  the  former  order  of 
this  court,  and  represents  that  he  is  the  owner  of  the  prop- 
erty which  is  the  subject  of  this  action;  and  thereupon,  on 
his  motion,  he  is  made  defendant  in  this  action  in  lieu  of  the 
said  C.  D.  And  the  said  C.  J),  is  discharged  from  all  liability 
to  either  of  the  parties  in  respect  to  the  subject  of  this  action, 
and  it  is  now  considered  that  he  go  hence  without  day,  and 

recover  from  the his  costs  herein  expended.^    And  in  all 

farther  proceedings  herein,  the  name  of  the  said  X.  P.  shall 
be  substituted  as  defendant  in  the  action. 

Section  5017  of  the  code  makes  the  provisions  of  the  last  section  ap- 
plicable to  actions  brought  against  a  sheriff,  or  other  officer,  for  the  re- 
covery of  property,  or  its  proceeds,  taken  under  execution.  In  such 
cases,  the  above  entries  should  be  modified  to  show  the  facts  of  the  case. 

iThis  last  order,  discharging,  etc.,  will  be  made  when  he  has  complied  with 
the  i)rdcr  of  court  to  pay  over  or  deposit  the  property. 


22  JOURNAL  ENTRIES.  [SEC.  5018- 

23.  (Sec.  5018,  80  O.  L.  138.)     Party  in  inUrest  substituted  for 

Sheriff} 

[Title.'] 

It  appearing  to  the  court  that  the  property  in  the  petition 
described  was  taken  by  the  defendant,  under  an  execution  [or., 
attachment]  issued  in  favor  of  X.  P.;  now,  on  motion  of  said 
defendant  and  of  the  said  IS".  P.,  it  is  ordered  that  the  said  I^. 
P.,  upon  his  giving  security  for  the  costs,  be,  and  he  is  hereby 
substituted  as  defendant  in  this  action,  and  that  the  action 
thereafter  proceed  in  his  name  as  defendant. 

24.  (Sec.  5074.)     Neio  party  made  on  counterclaim. 
[Title.'] 

It  appearing  to  the  court  that  X.  P.  is  a  necessary  party  to 
a  final  decision  upon  tlie  counterclaim  filed  herein,  on  mo- 
tion, it  is  ordered  that  the have  leave  to  issue  a  sum- 
mons accordingly  for  the  said  N.  P.  as  such  party. 

So,  also,  a  new  party  may  be  made,  when  necessary  to  a  final  deci- 
sion uijon  a  set-ofF,  by  section  5076  of  the  code. 


CHAPTER  IV. 

JOINDER  OF  ACTIONS. 
Election — 

25.  Order  to  elect  between  two  counts. 

26.  Order  to  elect  between  inconsistent  claims. 

27.  Entry  of  election. 

28.  Entry  of  election,  and  exception. 

28a.  (Sec.  5021.)     Judgment  for  money  and  decree  for  sale,  etc. 

Election — 

Where  one  cause  of  action  i.s  set  forth  in  two  counts,  as  at  common 
law,  the  court  may,  on  motion  of  the  defendant,  require  the  plaintiff 
to  elect  upon  which  count  he  wull  proceed. - 

iThis  order  is  within  the  discretion  of  the  court.  Sifford  v.  Beatty,  12  Ohio; 
St.  189. 

2Sturges  V.  Burton,  8  Ohio  St.  215. 


-5018.]  JOINDER   OF    ACTIONS.  2? 

Inconsistent  and  incongruous  claims  can  uot  be  joined  in  a  peti- 
tion. In  such  case,  the  plaintiff  will  be  put  to  his  election  on  which 
to  proceed.^ 

25.  Order  to  elect  heticccn  tivo  counts. 

On  motion,  and  it  appearing  to  the  court  that  in  the  peti- 
tion in  this  case  there  is  but  one  cause  of  action  set  forth  in 
two  counts,  it  is  hereby  ordered  that  the  plaintiff  be  required, 
witliin  ten  days,  to  elect  upon  which  count  he  will  proceed; 
and  the  other  said  count,  it  is  hereby  ordered,  shall  be 
stricken  from  the  said  petition. 

26.  Order  to  elect  between  inconsistent  claims. 
[Title.'] 

On  uiotion,  and  it  appearing  to  the  court  that  inconsistent 
and  incongruous  claims  are  joined  in  the  petition  in  this 
case,  it  is  ordered  that  the  plaintiff  be  required,  witliin  ten 
da^'s,  to  elect  upon  which  cause  of  action  he  will  proceed; 
and  that,  as  to  the  other  of  said  causes,  his  petition  be  dis- 
missed. 

27.  Entry  of  election. 

Now  comes  the  plaintiff",  by  his  attorney,  and,  in  compli- 
ance with  the  order  of  court  heretofore  made,  elects  to  pro- 
ceed upon  the  first  of  said  counts  [or,  causes]  in  his  petition, 
and  dismisses  his  action  as  to  the  second. 

If  the  plaintiti'  excepts  to  the  order,  the  entry  of  election  may  be  as 
follows : 

28.  Entry  of  election,  and  exception. 
[Title.'] 

Xow  comes  the  plaintiff",  by  his  attorney,  and  enters  an 
exception  to  the  order  heretofore  made  within  this  term,  re- 
quiring him  to  elect  upon  which  count  [or,  cause  of  action] 
ill  his  petition  he  will  proceed.  And,  not  waiving  in  any 
manner  his   exception,  the  said  plaintiff"  elects  to  proceed 

^Insurance  Co.  v.  Yattier.  1  Handv,  217. 


24  JOURNAL    ENTRIES.  [SEC.  5032- 

upoii  the  first  of  said  counts  [or,  causes],  and  dismisses  his 
action  as  to  the  second. 

28a.  (Sec.  5021.)     Judgment  for  money,  and  decree  for  sale  of 
mortgaged  2'>remises. 
[^^Y^e.] 
See  entry  No.  216,  et  seq, 


CHAPTER  V. 

WHERE  ACTIOX  TO  BE  BROUGHT. 

29.  (Sec.  5032.)     Order  for  change  of  venue. 

30.  (Sec.  5033.)     Order,  in  case  of  corporations. 

31.  (Sec.  5034.)     Staying  proceedings  against  member  of  general  assembly, 

29.  (Sec.  5032.)      Order  for  change  of  venue. 

[Title  ?[ 

On  motion  of ,  and  the  court  being  satisfied^  that  a  fair 

and  impartial  trial  of  this  cause  can  not  be  had  in  this  county, 
it  is  ordered*  that  the  place  of  trial  be,  and  the  same  hereby 
is,  changed  to  the  county  of . 

It  is  therefore  directed  that  the  clerk  of  this  court  trans- 
mit to   the   clerk   of  the  Court  of  Common  Pleas  of  said 

county  of the  pleadings  and  papers  in  this  cause,  with 

a  certified  copy  of  this  order. 

30.  .(Sec.  5033.)      Order,  in  case  of  corporations. 

[Title?^ 

On  motion  of  plaintifif  [or,  defendant],  and  it  appearing  to 
the  court  that  the  defendant  \or,  plaintiff]  herein  is  a  corpo- 
ration having  more  than  fifty  stockholders,  and  the  plaintiff 
\or,  defendant]  haying  made  application  according  to  statute 
for  a  change  of  yenue,  it  is  ordered,  etc,  as  from  *  in  last. 

31c  (Sec.  5034.)     Staying  proceedings  against  member  of  the  gen- 
eral asseriibly. 
[Title.] 
On  motion  of ,  and  it  appearing  to  the  court  that  the 


IBank  of  Cleveland  r.  Ward.  11   Ohio,  128,  130. 


-5053.]  JURISDICTION    I5Y    SUMMONS,  ETC.  25 

defendant  is  a  member  [or,  officer]  of  the  senate  [or,  house 
of  representatives]  of  this  state,  it  is  therefore  ordered  that 
all  further  proceedings  in  this  action  against  the  said  C.  D. 
be  stayed  during  the  present  session  of  the  said  senate  [cry 
house  of  representatives],  and  for days  thereafter. 


CHAPTER  VI. 

JURISDICTION  BY  SUMMONS,  PCBLICATION,  OR  APPEARANCE. 
SoHDivisiox  I.  Actual  servick. 

II.    COXSTRUCTIVE    SERVICE. 

SUBDIVISION  I.— Actual  service. 

When  the  sherilf  rcturii.s  :i  summons  .served,  and  the  defendant 
wishes  to  call  in  question  the  regularity  of  such  service,  he  may  enter 
his  appearance  "for  that  pur])ose  only,"  and  move  to  set  aside  or 
amend  the  return  of  the  sheriff,  or  set  aside  the  service.  The  order 
of  the  court  may  be  expressed  by  a  simple  granting  or  overruling  of 
the  motion,  or  by  an  order  setting  aside  or  amending  the  service  and 
return. 

32.  Order  setting  aside  service. 
[Title.] 

On  motion  of  defendant,  and  it  heing  made  to  appear  that 
the  service  of  summons  herein  was  irregular,  the  said  service 
and  the  sheriff's  return  thereof  are  hereby  set  aside  and  held 
for  naught. 

SUBDIVISION  II. — Constructive,  sertice. 

33.  Order  approving  publication. 

Unknown  heirs — 

34.  (Sec.  5053.)     Order  for  publication  against. 
3.J.  Order  approving  publication. 


26  JOURNAL    ENTRIES.  [SEC.  5053- 

There  is  no  provision  of  the  code  requiring  the  court  to  approve  of 
the  publication  of  notice  independent  of  the  final  action  of  the  court 
in  rendering  judgment  predicated  on  the  publication;  but  this  is  a 
convenient  practice  in  view  of  the  possible  loss  of  the  papers.^  Publi- 
cation should  not  be  approved  unless  there  has  been  a  strict  and  literal 
compliance  with  the  law.'^ 

33.  Order  approcinq  i^iihUcaUon. 

I^ow  comes  the  plaintifi",  bj  his  attorney,  and  offers  proof 
of  publication  of  the  pendency  and  prayer  of  the  petition 
herein ;  and  the  court  finding  said  publication  and  proof  in 
all  respects  regular  and  according  to  law,*  do  hereby  approve 
the  same. 

Unknoavn  heirs — 

34.  (Sec.  5053.)     Order  for  ijuhllcation  aqalnst. 
ITitle.-] 

On  motion  of  the  said  A.  B.,  by  his  attorney,  and  it  ap- 
pearing from  the  aflidavit  of  the  said  A.  B.  that  the  names 
and  residences  of  the  heirs  of  the  said  L.  M,  are  unknown 
to  the  said  plaintiif,  it  is  ordered  that,  as  to  them,  service  be 
made  by  publication  for  six  consecutive  weeks,  in  manner 
prescribed  by  statute  in  case  of  non-resident  defendants. 

35.  Order  approving  jyiihlication  against  unknown  heirs. 
\_Title:\ 

As  in  No.  33  to  *,  and  continue:'] — and  the  former  order  of 
this  court,^  do  hereby  approve  the  same. 

1  Vallette  v.  Ky.  Trust  Co.  Bank,  Gen.  Term,  1855,  2  H.  1.  ^ 

2  Lawler  v.  "Whetts,  1854,  1  H.  39. 

'  The  order  of  court  must  be  substantially  complied  with,  and  a  finding  by 
the  court  "that  publication  has  been  made  according  to  law"  only,  is  not  con- 
clusive upon  bill  of  review.     Trimble  et  al.  v.  Longworth,  13  Ohio  St.  431. 


-5056.]  PLEADINGS.  27 


CHAPTER  VTT. 
r  LEADINGS. 

Subdivision  II.   rKxiTiox. 

III.  Demirkku. 

IV.  AXSWEK  AND  (•KOS.<'-PETITIOy. 
VI.    GeXEKAI-  lULE.S. 

VII.     MiSTAKKS  AM)   AM  EXIIMKNT.S. 

SUBDIVISION  II.— Pktitiov. 

When  the  petition  states  several  causes  of  action  in  one  count,  with- 
out separately  stating  or  numbering  them,  the  court  may,  hy  an  order, 
require  tliat  the  pUiintifT  sliall  separately  state  and  number  each  of 
thcin.  And  if  the  plaintifi'  fail  to  comply  with  such  order,  the  court 
may  then  dismiss  the  plaintifTs  action.' 

36.  Order  to  scparatcb/  state  and  number  causes,  etc. 
[Title.] 

On  motion,  and  good  cause  shown,  it  is  ordered  that  the 
plaintiff  herein  amend  his  petition  by  separately  statins'  and 
numbering  the  ditierent  causes  of  action  therein  set  forth ; 
and  ten  days  are  allowed  therefor. 

SUBDIVISION  III.— DEMrRRER. 

37.  (Sec.  5065.)     Demurrer  to  j^etition  sustained,  and  several  petitions  al- 

lowed. 

38.  (Sec.  5116.)     Demurrer  to  petition  sustained,  with  leave  to  amend. 

39.  Demurrer  to  petition  sustained,  and  judgment  for  defendant. 

40.  (Sec.  5113.)     Demurrer  to  petition  overruled,  with  leave  to  answer. 

41.  Demurrer  to  j^etition  overruled,  and  judgment  for  plaintiff. 

42.  (Sec.  5116.)     Demurrer  to  answer  sustained,  with  leave  to  amend. 

43.  Demurrer  to  answer  sustained,  and  judgment  for  plaintiff. 

44.  (.Sec.  5113.)     Demurrer  to  answer  overruled,  with  leave  to  reply. 

1  Board  of  Coram' rs  of  Jackson  Co.  v.  Hoaglin,  5  Kan.  558.  See  Code,  sec- 
tion 5061. 


'28  JOURNAL    ENTRIES.  [SEC.  5057- 

An  order  enlarging  the  time  to  answer  has  been  held  in  New  York 
an  extension  of  time  to  demur. ^ 

When  plaintiff's  petition  has  been  adjudged  insufficient  upon  de- 
murrer, and  no  leave  to  amend  been  asked  for,  it  is  not  error  to  pro- 
ceed to  final  judgment  against  the  plaintiff,  without  granting  leave  to 
amend." 

When  a  demurrer  to  the  petition  is  overruled,  the  plaintiff  may  pro- 
ceed to  a  decree,  taking  the  petition  as  confessed,  or  the  defendant 
may  be  permitted  to  answer.^ 

37  (Sea  5065.)  Demurrer  to  'petition  sustained,  ana  several  pe- 
titions allowed. 

[Title.] 

This  cause  being  heard  on  the  demurrer  to  the  petition, 
the  court,  on  consideration,  finds  the  same  well  taken  in  this, 
that  in  said  petition  there  is  misjoinder  of  several  causes  of 
action,  and  does  therefore  sustain  the  said  demurrer. 

And  on  motion  of  the  plaintiif,  he  is  allowed  [upon  pay- 
ment of  the  costs  herein  to  the  present  time],^  to  file  within 

days  an  amended  petition  in  this  case,  and  also  to  file 

other  several  petitions,  upon  each  of  which  a  case  shall  be 
docketed  and  proceeded  in  without  further  service.  Said 
amended  petition,  and  other  several  petitions,  each,  to  con- 
tain such  of  said  original  causes  of  action  as  may  be  properly 
joined  in  one  action.  [Or,  the  court  may  order  what  cause6 
may  he  set  forth  in  each  j)etitioyi.~\ 

38.  (Sec.  5116.)  Demurrer  to  'petition  sustained,  luith  leave  to 
amend.^ 

[TitleP^ 

This  cause  being  heard  on  the  demurrer  to  the  petition, 
the  court,  on  consideration,  sustains  the  same;  and  the 
plaintiff  is  allowed  to  amend  his  petition  within days. 

1  Broadhead  v.  Broadhead,  4  How.  308. 

2  Devoss  V.  Gray,  22  Ohio  St.  159. 

3  Baldwin  v.  Creed,  Wright,  729;  sec.  5113. 
*  Discretionary  with  the  court. 

^  An  amendment  can  not  be  made  by  mutilating  or  altering  the  files.  Hill 
V.  Superintendent,  etc.,  10  Ohio  St.  2til.  A  new  pleading  or  amendment  of 
pleading  mn^t  be  filed. 


-5065.]  PLEADINGS.  29 

39.  Demurrer  to  jiclilioii  sustained,  and  juJfj  merit  for  defendant. 
[Title.'] 

This  cause  being  heard  on  the  demurrer  to  the  petition, 
the  court,  on  conBideration  thereof,  sustain  the  same. 

And  thereupon,  the  phaintiff  failins;  [or,  not  asking]  to 
plead  furtlier,  it  is  considered  by  the  court  that  the  defendant 
go  hence  without  day,  and  recover  from  the  phaintitf  his  costs 
hci-ein  expen(U!d.' 

40.  (Sec.  5113.'*     Demurrer  to  petition  orerruled,  with  leace  to 

avsvur. 

[Title.] 

This  cause  being  heard  on  the  demurrer  to  tlie  petition, 
the  court,  on  consideration,  overrules  the  same  ;  and,  on  mo- 
tion, the  defendant  is  allowed  to  answer  within  days. 

41.  Demurrer  to  petition  ocerrul<d,  oud  Judi/nx  iif  fur  pldiiifitf'. 
[2'itle.] 

This  cause  being  heard  on  tlie  demurrer  to  the  jietition, 
the  court,  on  consideration  thereof,  overrule  the  same.* 
And  thereupon,  the  defendant  failing  [or,  not  asking]  to 
plead  further,  the  court  finds  upon  the  petition  [and  evi- 
dence] that  the  said  defendant  is  indebted  to  plaintiff  in  the 
sum  of dollars. 

It  is  therefore  considered  by  the  court  that  the  plaintiff  re- 
cover from  the  defendant  the   said  sum  of  $ ,  so  found 

due,  together  with  his  costs  herein  expended.^ 

42.  (Sec.  5116.)     Demurrer  to  answer  sustained,  with  leave  to 

amend.^ 

[Title.] 

This  cause  being  heard  on  the  demurrer  to  the  answer,  the 
court,  on  consideration,  sustains  the  same,  and  the  defendant. 
is  allowed  to  amend  his  answer  within days. 

1  As  to  awarding  executions,  see  post,  page  152. 

2  See  note  5  on  preceding  page. 


3U  JOURNAL    ENTRIES.  [SEC.  5074- 

43.  Demurrer  to  emswer  sustained  and  judgment  for  'plaintiff. 

ITitle^^ 

This  cause  being  heard  on  the  demurrer  to  the  answer,  the 
court,  on  consideration  thereof,  sustains  the  same.  [^Con- 
clude as  from  *  in  entry  No.  41,  substituting  ^^  pleadings'^  for 
"  petition.'' 

i4.  (Sec.  5113.)  Demurrer  to  answer  overruled,  with  leave  to 
reply. 

[Title.'] 

This  cause  being  heard  on  the  demurrer  to  the  answer,  the 
court,  on  consideration  thereof,  overrules  the  same,  and  the 
plaintift'  is  allowed  to  file  a  reply  within days. 

SUBDIVISION  lY. — Axs^vER  axd  cpwOss-petition. 

45.  (Sec.  5074.)  Xew  party  made  on  counterclaim. 

46.  (Sec.  5074.)     Counterclaim  made  the  subject  of  a  separate  action. 

45.  (Sec.  5074.)     New  party  made  on  counterclaim. 

[See  entry  number  24.] 

46.  (Sec.  5074.)     Counterclaim  made  the  subject  of  a  separate 

action. 

[Title.'] 

It  appearing  to  the  court  that  E.  F.  is  a  necessary  party 
to  a  final  decision  upon  the  counterclaim  set  up  in  the  an- 
swer herein,  on  motion,  it  is  ordered  that  the  said  counter- 
claim be  stricken  out  of  the  answer,  and  made  the  subject  of 

a  separate  action.    And days  are  allowed  for  an  amended 

answer  in  this  case. 

SUBDIVISION  VI. — General  rules  oe  pleadixg. 

47.  (Sec.  5084.)     Substituting  pleading. 

48.  (Sec.  5087.)     Order  to  strilve  out  redundant  matter,  etc. 

49.  (Sec.  5088.)     Order  to  make  definite  and  certain. 

50.  (Sec.  5089.)     Withdrawing  counterclaim  and  making  separate  action 

51.  (Sec.  5098.)     Time  for  answer  extended. 

52.  Pleading  filed  by  leave. 

53.  Pleading  received. 


-5087.]  PLEADINGS.  31 

54.  (Sec.  5101.)     Nonsuit  ordered  unless  interrogatories  answered. 

55.  (Sec.  5101.)     Judgment  ordered  unless  interrogatories  answered. 

56.  (Sec.  5101.)     .Judgment  as  by  default  entered. 

57.  Amending  defective  certificate. 

In  New  York,  it  lia.s  l)cen  licld  that  enlarging  the  time  to  an.swer  is 
an  exten.sion  (jf  time  to  demur,'  and  upon  reasons  equally  applicable 
to  the  code  of  Ohio. 

When,  in  amending  pleadings,  an  allegation  is  required  to  be  stricken 
from,  or  added  to,  a  petition,  it  can  not  be  done  by  mutilating  or  alter- 
ing the  files.  The  party  amending  should  either  file  a  new  pleading 
or  file  a  statement  of  the  amendment,  and  designate,  by  reference, 
where  the  new  matter  is  to  be  inserted,  or  what  is  to  be  considered  as 
stricken  out.'^ 

A  pleading  may,  on  motion,  be  stricken  from  the  files  for  want  of 
verification.  Wiicn  .>^ucli  has  been  done,  in  case  of  a  petition,  and  the 
defect  supplied,  a  new  service  must  be  made.^ 

47.  (Sec.  5084.)     Substituting  j^^^^^^ings. 
[Title] 

It  appearing'  that  the  pleadings  [or  any  of  fhcm^  in  this  case 
have  been  lost,  or  are  withheld  from  the  files  of  the  court,  on 

motion,  it  is  ordered  that  the be  allowed  to  substitute 

copies  thereof;  and  that  the  same  be  in  all  respects  received 
in.stead  of  such  original  pleadings.* 

48.  (Sec.  5087.)     Order  to  strike  out  redundant  matter,  etc. 
[Title.-] 

This  cause  coming  on  to  be.  heard  upon  the  motion  to 
strike  out  from  the  petition  certain  redundant  [or,  irrevelant] 
matter,  the  court,  on  consideration,  grant  the  same  in  part, 
and  order  that  all  the  words  contained  in  said  petition  from, 
and  including,  the  Avord  "And  "  in  the  third  line  of  the  second 
page  to,  and  including  the  word  "  defendant,"  in  the  fiftli 
line  of  the  third  page,  be  stricken  out  therefrom ;  and  as  to 

1  Broadhead  r.  Broadhead,  4  Howard,  308. 

2  Hill  V.  Superintendent  of  Koad  District,  etc.,  10  Ohio  St.  261. 

3  Stevens  v.  "White,  Com.  PI.  Gallia,  1  W.  L.  M.  394. 

*  See  Hollister  et  al  v.  The  Judges,  etc.,  8  Ohio  St.  201.  For  entry  and  pro- 
ceedings under  this  section  when  pleadings  and  papers  have  been  destroyed  by 
fire  or  civil  commotion,  see  appendix,  p.  504d. 


32  JOURNAL    ENTRIES.  [SEC.  5088- 

the  matter  contained  in  the  second  paragraph,  the  motion  is 
overruled. 


49.  (Sec.  5088.)     Order  to  make  definite  and  certain. 
ITille:] 

This  cause  being  heard  on  the  motion  to  require  the  plaint- 
iff to  make  his  petition  more  definite  and  certain,  the  court, 
on  consideration,  grant  said  motion,  and  allow  ten  days  for 
making  said  amendment. 

50.  (Sec.  5089.)     Withdratoing   counterclaim  and  making  sep- 

arate action. 

\_Title.'\ 

l^ow  comes  the  defendant  herein,  and,  by  leave  of  court, 
withdraws  his  counterclaim  [or^  set-off]  set  up  in  his  answer. 
And,  on  motion,  the  said  defendant  is  allowed  forthwith  to 
file  his  petition,  and  docket  in  this  court  a  separate  action 
on  the  subject-matter  of  the  said  counterclaim  \or,  set-off], 
and  proceed  in  the  same  without  service  of  process ;  all  sub- 
sequent pleadings  to  be  filed,  and  proceedings  to  be  had,  as 
in  other  like  cases  in  this  court  after  process  served. 

51.  (Sec.  5098.)      Time  for  answer  extended. 
[Title?^ 

On  motion,  time  for  answering  herein  is  extended  ten  days. 

52.  Pleading  filed  by  leave. 
ITitle.] 

E"ow  comes  the  defendant,  and,  by  leave  of  court,  files  his 
answer  herein. 

53.  Pleading  received. 
[Title:] 

The  answer  heretofore  filed  herein  is  now  received  by 
eourt. 


--51 01.]  PLEADINGS.  33 

5i.  (ISec.  5101.)     Nonsuit    ordered    unless   interrogatories   an- 
swered. 
[Title.] 

Oil  motion  of  the  defendant,  and  it  appearing  to  the  court 
tluit  the  plaintiff  has  refused  [or,  neglected]  to  answer  the 
interrogatories  annexed  to  the  answer  herein,  within  the  time 
i-('(mired  hy  law,  it  is  now  ordered  that  unless  answer  thereto 

1)C!  tiled  in  this  court  within days,  that  tlien  this  action 

stand  dismissed  at  tlio  cost  of  the  plaintiff. 

55.  (Sec.  5101.)     JiKh/nu  /it  ordered  unless  interrogatories  an- 

swered. 

[Title.] 

On  motion  of  the  plaintiff',  and  it  appearing  to  the  court  that 
the  defendant  has  refused  [or,  neglected]  to  answer  the  inter- 
rogatories annexed  to  the  petition  herein,  within  the  time  re- 
quired l)y  law,  it  is  now  ordered  that  unless  answer  thereto 

he  filed  in  this  court  within  days,  this  case  stand  as  in 

case  of  failure  to  answer,  and  plaintiff"  he  allowed  judgment 
u})Oii  his  claim  as  hy  default. 

56.  (Sec.  5101.)     Judgment  as  bg  default  entered,  at  expiration 

of  time  allowed,  etc. 

[Title.] 

And  now  the  defendant  herein  being  still  in  default  for  an- 
swer to  the  interrogatories  annexed  to  the  petition,  although 
the  time  allowed  therefor  by  the  court  lias  expired,  the 
court  find  upon  the  petition  and  evidence,  and  the  de- 
fault of  the  defendant,  that  said  defendant  is  indebted  to 
plaintiff  in  the  sum  of  $ . 

It  is  therefore  considered  by  the  court  that  the  plaintiff  re- 
cover from  the  defendant,  C.  T>.,  the  said  sum  of  $ ,  and 

his  costs  herein  expended. 

For  forms  of  proct;eding  to  enforce  answer  to  interrogatories   by 
attachment,  see  Contempts  of  Court. 
3 


34  JOURNAL    ENTRIES.  [SEC.  5113- 

57.  Amcndinrj  dcfedioe  certificate.'^ 

[rule.] 

On  motion  of  the  plaintiff,  and  it  appearing  that  the  veri- 
fication of  the  petition  lierein  is  defective,  only  in  the  official 
certificate  of  the  notary  taking  the  same,  it  is  herehy  ordered 
that  the  same  may  he  amended;  which  being  done,  no  new 
summons  on  account  of  said  amendment  need  be  issued. 


SUBDIVISION  VII.— Mistakes  and  Amendments. 

Amendment  of  pleadings  and  process — 

58.  (Sec.  5113.)  Demurrer  overruled,  with  leave  to  plead. 

59.  (Sec.  5114.)  Order  adding  name  to  process. 

60.  (Sec.  5114.)  Order  striking  name  from  pleadings. 

61.  (Sec.  5114.)  Order  correcting  name  of  party. 

62.  (Sec.  5114.)  Leave  to  amend  formal  error. 

63.  (Sec.  5116.)  Demurrer  sustained,  with  leave  to  amend. 

64.  (Sec.  5118.)  Order  substituting  real  for  fictitious  name. 

Supplemental  pleadings — 

65.  (Sec.  5119.)     Leave  to  file. 

Consolidation  of  actions — 

66.  (Sec.  5120.)     Order,  in  the  case  continued. 

67.  (Sec.  5120.)     Order,  in  the  case  discontinued. 

68.  Order  that  several  suits  abide  the  result  of  one. 

Amendment  of  pleadings  and  process — 

When  an  amendment  is  ordered  to  be  made  to  a  pleading  by  add- 
ing, or  striking  ont,  an  allegation,  the  practice  of  changing,  interlin- 
ing, or  mutilating  the  original  paper  is  not  favored.^  ^  Either  a  new 
pleading  should  be  filed,  or  a  statement  of  the  amendment  made  and 
filed,  designating  by  reference  where  the  new  matter  is  to  be  added  or 
stricken  out,  or  the  journal  entry  making  the  amendment  may  make 
such  designation.  But  if  alteration  of  the  original  paper  is  made  with 
the  permission  of  the  court,  and  no  prejudice  results  to  the  adverse 
party,  the  final  judgment  will  not  be  reversed  therefor.^ 


1  Where  the  official  certificate  of  a  verification  to  a  petition  is  defective,  the 
defect  may  be  cured  by  amendment.  Stevens  v.  White,  Com.  PI.  Gallia,  1  W. 
L.  M.  394. 

'Hill  V.  Supt.,  etc.,  10  Ohio  St.  261. 

»  Schneider  v.  Hoosier,  22  Ohio  St.  98. 


-5114.]  PLEADINGS.  35 

Tlie  name  of  any  party  may  be  stricken  from  a  pleading  and  another 
substituted  in  all  future  proceedings,  without  being  objectionable  as  an 
amendment  that  changes  substantially  the  original  claim,  or  as  con- 
flicting with  section  110  (see  5058  Rev.  Stat.)  of  the  code.^ 

When  an  order  requires  a  party  to  amend,  and  directs  him  to  pay 
costs,  payment  of  the  costs  is  not  a  condition  precedent  to  the  amend- 
ment unless  so  expressed.^ 

A  summons  may  be  amended,  but  without  an  appearance  the  amended 
summons  must  l)c  served  on  the  defendant.^ 

58.  (Sec.  5113.)     Demurrer  overruled^  \oith  leave  to  plead. 
ITitle.] 

See  entries  Nos.  40  and  44. 

59.  (Sec.  5114.)     Order  adding  name  to  j^rocess. 
[Title.] 

On  motion,  and  it  appearing  that  in  the  order  of  injunction 
herein  issued  the  name  of  G.  11.,  one  of  the  defendants,  was 
inadvertently  omitted,  it  is  hereby  ordered  that  said  process 
be  so  amended  as  to  include  the  name  of  the  said  G.  H.,  and 
that  in  all  things  he  be  subject  to  the  same  order  and  process 
as  the  other  parties  therein  named. 

60.  (Sec.  5114.).     Order  striking  name  from  j^lcadings. 
[Title.] 

On  motion,  and  it  appearing  that  in  the  petition  G.  H.  is 
named  as  one  of  the  parties  plaintiff,  and  that  the  same  is  an 
inadvertence,  the  said  G.  H.  having  no  interest  in  the  said 
case,  it  is  ordered  that  the  name  of  the  said  G.  II.  be,  and 
hereby  is,  stricken  oat  of  said  petition,  and  all  subsequent 
pleadings  and  process. 

61.  (Sec.  5114.)     Order  correcting  name  of  j^afty. 
['J'itlc] 

On  motion,  and  it  appearing  that  the  defendant,  Johnson  L., 
has  been  sued  in  this  action  by  the  name  of  John  L.,  through 

^Ansonia  Kubber  Co.  v.  Wolf,  1  Handy,  236. 

^Sturtevant  v.  Fairman,  4  Sandf.  674. 

3  Williams  v.  Hamlin,  1  Handy,  95.     See  also  1  Handy,  574. 


36  JOURNAL    ENTRIES.  [SEC.  5114- 

inadvertence,  and  that  the  said  defendant  has  been  personally 
served  with  summons,  it  is  ordered  that  said  mistake  be  cor- 
rected, and  that  this  entry  operate  as  an  amendment  to  the* 
petition  and  summons;  and  that  the  true  name  of  the  de- 
fendant be  used  in  all  further  proceedings  herein. 

62.  (Sec.  5114.)     Leave  to  amend  formal  error. 
{Title.] 

On  motion,  it  is  ordered  that  the  plaintiff  have  leave  to 
amend  his  petition  on  file  in  this  action  by  inserting  \or,  can- 
celing the  words  [designate  the  error]  after  tlie  word on 

the page  of  said  petition ;  and  this  entry  shall  be  con- 
sidered as  effecting  said  amendment. 

63.  (Sec.  5116.)     Demurrer  sustained,  with  leave  to  amend. 
[Title.] 

See  entries  Nos.  38  and  42. 

64.  (Sec.  5118.)     Order  substituting  real  for  fictitious  name. 
[Title.] 

It  appearing  to  the  court  that  summons  in  this  action  has 
been  served  personally  upon  the  defendant  under  the  name 
of  J.  K.,  and  that,  since  the  issuing  thereof,  the  true  name, 
of  the  said  defendant  is  discovered  to  be  J.  H.,  on  motion,  it 
is  ordered  that  the  petition  herein  be,  and  tbe  same  hereby 
is,  amended  by  substituting  the  name  of  J.  H.  in  the  place 
of  J.  K. 

Supplemental  pleadings — 

65.  (Sec.  5119.)     Leave  to  file. 
[Title.] 

On  motion  [and  notice  having  been  given  to  the  adverse- 
party],  the herein  now,  by  leave  of  court,  files  a  supple- 
mental   in  this  case. 

Consolidation  of  actions — 

I  The  practice  is  for  defendant  to  file  motions  with  the  clerk  for  consol- 
idation, and  if  the  plaintiff  fails  to  resist  or  show  good  cause  to  the  con- 
trary, the  defendant  is  entitled  on  call  of  the  motion  dociiet  to  his  or 


■5120.]  MOTIONS.  .      37 

der.  A  separate  motion  and  journal  entry  should  be  made  in  each 
case,  that  tlie  record  of  each  case  may  bo  complete.^ 

GO.  (Sec.  5120.)      Ordi'v  In  the  case  continued. 

[Title.'] 

On  motion  of  the  defendant,  and  for  good  cause  shown,  it 

is  ordered  that  this  case  and  case  numbered  ,  in   this 

court  [between  the  same  parties],  be,  and  they  are  hereljy 
consolidated;  and  tliat  all  furtlier  proceedings  in  said  con- 
solidated action  be  had  in,  and  under  the  number  of,*  this 
action. 

07.  (Sec.  5120.)      Order  in  the  case  discontinued. 

[Title.] 

As    in    the    lad  to,^   and  continue:] — case  aforesaid; 

[and  that  the  defendant  recover  from  the  plaintiff  his  costs 
in  this  action  expended.] 

G8.   Order  that  several  suits  abide  the  result  of  one  of  them. ^ 

[Tdlc.] 

[Title.] 

[Titled 

On  motion  of  the ,  and  due  consideration  thereof  be- 
ing had,  it  is  ordered  that  all  of  the  above-named  causes 
abide  the  event  and  linal  determination  of  the  one  which  the 

may  elect  to  have  tried  ;  and  that  whatever  judgment 

may  finally  be  rendered  in  the  cause  so  tried,  shall  be  en- 
tered in  each  of  the  other  causes.  And  the  party  prevailing 
shall  be  at  liberty  to  enter  judgment  accordingly. 

SUBDIVISION  Till.— Motions. 

69.  Motion  filed  by  leave. 

70.  (Sec.  512ti.)     IMotion  filed  and  notice  ordered. 

71.  ]\Iotion  granted  or  overruled. 

It  is  not  customary  to  apply  to  the  court  for  leave  to  tile  a  motion, 


^See  on  this  subject  Howlett  v.  Martin.  ?,  Law  Gazette.  2(36. 
2  See  Jackson  v.  Swartevont,  5  Cow.  283.     See  also  Blake  v.  E.  K.  Co.,  17 
How.  Pr.  228. 


38       ^  JOURNAL   ENTRIES.  [SEC.  5121- 

before  the  party  desiring  to  file  it  is  in  default,  except  in  cases  where 
the  statute  specially  requires  it.  But  where  the  party  is  in  default  he 
of  course  has  no  right  to  file  a  motion  without  leave ;  and  in  cases 
where  notice  is  required  which  the  court  may  by  order  dispense  with,, 
the  motion  should  be  filed  by  leave. 

69.  3fofion  filed  by  leave. 
[Title.] 

Now  comes  the herein,  and  by  leave  of  court  files  his 

motion  to  [state  object  of  motion.'] 

70.  (Sec.  5126.)     Motion  filed  and  notice  ordered. 
[Title.] 

l^ow  comes  the herein,  and  by  leave  of  court  files  his 

motion  to  strike  [any  pleading  or  paper]  from  the  files.  And 
the  court  orders  that  notice  thereof  be  given  to  the ac- 
cording to  law. 

71.  llotion  granted  or  overruled. 
[Title.] 

This  cause  now  coming  on  forbearing,  on  the  motion  of  the 

to  [state  object],  the  court,  on  consideration  thereof,  grants. 

[or,  overrules]  the  same. 


DIYISIOI^  III.— Trial. 

Chap.  I.  Provisions  Preliminary. 
II.  Conduct  of  the  trial. 

III.  Evidence. 

IV.  Exceptions. 
V.  New  trial. 


CHAPTER  I. 

PROVISIONS  PRELIMINARY. 

Subdivision  III.  Tender  and  offer  to  confess  judgment.. 
IV.  Revivor  of  actions. 

SUBDIVISION  III. — Tender  and  offer  to  confess  judgment. 

I.  Tender  on  contract  for  payment  of  money — 

72.  (Sec.  5137.)     Judgment  for  money  after  tender  made  before  suit. 


-5137.]  PROVISIONS    PRELIMINARY.  39. 

II.    TkXDKR  ox  CONTRACT  FOR  I'AYMKNT    OF    OTHER  ARTICLE    THAN    MONEY TRIAL 

BY  THE  COURT 

73.  (Sec.  5I38.)     Judgment  after  tender  proved,  for  assessed  value. 

74.  (Sec.  5138.)     Judgment   after  tender  proved,  allowing  defendant  to 

j)erform  contract. 

75.  (Sec.  51-38.)     Judgment  for  plaintiff  when  tender  not  sufficient. 

II  I.    TkNDKK  on  CONTRACT  FOR  PAYMENT    OF    OTHER  ARTICLE  THAN  MONEY TRJAo 

RY  .JURY — 

76.  (Sec.  51.38.)     Verdict  of  jury  after  tender  proved,  assessing  value. 

77.  (Sec.  5138.)     Judgment  on  verdict  for  assessed  value  of  property  or 

labor. 

78.  (Sec.  5138.)     Judgment  on  verdict  when  defendant  oflFers  to  perform 

contract. 

79.  (Sec.  5138.)     Verdict  of  jury  finding  tender  insufficient. 

80.  (Sec.  5138.)     Judgment  on  last  verdict. 

IV.  Offer  to  confe.s.s  jddc.ment — 

81.  (Sec.  5139.)     JudL'ment  after  offer  to  confess  before  suit. 

82.  (Sec.  5140.)     Judgment  on  offer  to  allow,  and  acceptance. 

83.  (Sec.  5140.)     Judgment  after  offer  rejected. 

84.  (Sec.  5141.)     Judgment  after  offer  to  confess  part. 

I.  Tender  on  contract  for  payment  of  money — 

72.  (Sec.  5137.)     Jndqmcnt  after  tender  made  before  suit. 

[Title.] 

Enter  judgment  in  the  regular  form^  except  for  costs, and  add:] 
The  court  further  find  that  the  defendant,  as  set  up  in  his 
answer  herein,  tendered  to   said   plaintiff  the  said  sum  of 

$ ,  here  found  to  he  due  him,  before  the  commencement 

of  this  action,  and  also  paid  in  the  same  to  the  clerk  of  this 
court  before  the  trial. 

It  is  therefore  considered  by  the  court  that  the  plaintiff 
pay  all  the  costs  of  this  action,  and  that  the  clerk,  out  of  the 

money  in  his  hands,  as  aforesaid,  apply  first  the  sum  of  S 

to  the  payment  in  full  of  the  costs  herein,  and  pay  over  the 

balance,  to  wit,  the  sum  of  $ ,  to  the  plaintiff,  in  full  of 

the  judgment  here  rendered. 


40  JOURNAL    ENTRIES.  [SEC.  5138- 

II.  Tender  on  contract  for  payment  of  other  article  than 

MONEY TRIAL  BY  THE  COURT 

73.  (Sec.  5138.)     Judgment    after  tender  proved^  for   assessed 

value. 

[Title.] 

This  cause  coming  on  now  for  hearing,  upon  the  pleadings 
and  evidence,  was  submitted  to  the  court  without  the  inter- 
vention of  a  jury,  on  consideration  whereof,  the  court  finds 
that  the  defendant  did,  as  set  up  in  his  answer,  tender  to  the 

plaintiff,  on  the  day  of ,  18 — ,*  the  property  [or, 

labor]  therein  described,  and  that  the  same  was  in  full  per- 
formance of  the  terms  of  the  contract  set  up  in  plaintiff's 
petition ;  and  does  now  assess  the  value  of  said  property  [or, 

labor]  so  tendered  at  $ ,  which  the  court  finds  to  be  due 

to  this  plaintiff". 

It  is  therefore  considered  by  the  court  that  the  plaintiff  re- 
cover from  the  defendant  the  said  sum  of  | ,  but  without 

interest  or  costs  of  suit. 

74.  (Sec.  5138.)     Judgment  after  tender  proved,  allowing  defend- 

ant to  perform  contract. 

[Title.] 

This  cause  coming  on  now  for  hearing  upon  the  pleadings 
and  evidence,  was  submitted  to  the  court  without  the  inter- 
vention of  a  jury,  on  consideration  whereof,  the  court  finds 
that  the  defendant  did,  as  alleged  in  his  answer,  tender  to 

the  plaintiff",  on  the day  of ,  18 — ,  full  performance 

of  the  terms  of  the  contract  set  up  in  the  petition ;  and  the 
defendant  now  offering  to  perform  the  same  forthwith,  it  is 
therefore  considered  by  the  court  that,  upon  said  defendant 
delivering  to  plaintiff"  [specify  the  property,  or,  if  it  is  labor  to 

be  done,  rnake   the  statement  accordiiigly]  within days,  the 

said  defendant  go  hence  without  day,  and  recover  from  the 
plaintiff'  his  costs  herein  expended. 

75.  (Sec.  5138.)     Judgment  for  plaintiff  when  tender  not  suf- 

ficient. 
[Title:] 

As  in  No.  73  to  *,  and  continue:] — certain  property  [or,  la- 
bor], in  performance  of  the  contract  set  up  in  the  petition,  but 


-5 138. J  PROVISIONS    PRELIMINARY.  41 

the  court  finds  that  said  tender  was  not  in  accordance  witli 
the  terms  of  said  contract,  and  was  not  a  performance  of  the 
same.  The  court  further  finds  that  the  plaintiff  and  defend- 
ant entered  into  the  contract  set  forth  in  the  petition,  and 
tliat,  by  the   defendant   failing   to    perform    the   same,   the 

plaintiff  has  been  damaged  in  the  sum  of  ^ . 

It  is  therefore  considered  by  the  court  that  the  ]ilaintiff 

recover  from  the  defendant  the  said  sum  of  dollars,  his 

damages  so  assessed,  and  his  costs  herein  expended. 

III.  Tender  on  contract  for  payment  of  other  article  than 

MONEY trial  BY  .JURY 

76.  (Sec.  5138.)      VenUct  of  jury  after  tender  proved,  asscsswg 

value. 

[Title.-] 

Use  regular  jury  forms,  page  55,  and  let  the  verdict  be :] — ''  AVe, 
the  jury,  find  that  the  defendant  did,  as  set  up  in  his  answer, 

tender  to  the  plaintiff,  on  the  day  of  ,  18 — ,  the 

property  \_or,  labor]  therein  alleged,  and  that  the  same  was  a 
full  performance  of  the  contract  set  up  in  the  petition ;  and 
we  do  assess  the  value  of  the  said  property  [or,  labor]  so  ten- 
dered at dollars." 

77.  (Sec.  5138.)     Judgment  on  last  verdict  for  assessed  value  of 

property  or  labor. 

[Title.'] 

The  jury  in  this  action  having,  at  a  former  day  of  this 
court,  assessed  the  value  of  the  property  [or,  labor]  tendered 
by  the  defendant,  in  performance  of  his  contract  with  plaint- 
iff, at  % ,  it  is  therefore  now  considered  by  the  court  that 

the  plaintiff  recover  from  the  defendant  the  said  sum  of 
% ,  but  without  interest  or  costs  of  suit. 

78.  (Sec.  5138.)    Judgment  on  last  verdict  when  defendant  offers 

to  2')erform  contract. 

[litU:] 

The  jury  in  this  action  having  at  a  former  day  of  this 
court  found  that  the  defendant  made  a  tender  to  plaintiff  in 
full  performance  of  the  contract  l)ot\veen  tliem,  and  the  de- 


42  JOURNAL    ENTRIES.  [SEC.  5138- 

feudant  now  offering  to  perform  the  same  forthwith,  it  is  or- 
dered and  adjudged  that  upon  said  defendant  delivering  to 
plaintiff  [sjpecify  property;  or,  if  it  is  labor  to  he  performed, 
make  statement  accordinr/li/'],  within days,  the  said  defend- 
ant go  hence  without  day  and  recover  from  the  Dlaintiff  his 
costs  herein  expended. 

79.  (Sec.  5138.)      Verdict  of  jury  finding  tender  insufficient. 
[Title.] 

Use  regular  jury  forms,  page  55,   and  let  the  verdict  he ;] 
""We,  the  jury,  find  that  the  defendant  did   not  tender  to 
plaintiff  full  performance  of  the  contract  set  up  in  the  peti- 
tion ;  and  we  do  assess  the  damages  of  the  plaintiff  by  rea- 
son of  the  premises  at dollars." 

80.  (Sec.  5138.)     Judgment  on  last  verdict, 
[Title:] 

May  he  same  as  Entry  No.  249. 

IV.  Offer  to  confess  judgment — 

81.  (Sec.  5139.)     Judgment  after  offer  to  confess  hefore  suit.^ 
[Title:] 

Append  to  the  usual  judgment  entry,  omitting  costs,  the  follow- 
ing:] 

And  the  amount  here  recovered  by  the  plaintiff  not  being 
more  than  the  said  defendant  has  heretofore  in  open  court, 
before  the  bringing  of  this  suit,  and  after  notice  given  to  the 
plaintiff',  to  wit,  on  the day ,  18 — ,  offered  to  con- 
fess, it  is  ordered  that  the  said  plaintiff  pay  the  costs  of  this 
action. 

82.  (Sec.  5140.)     Judgment  on  offer  to  allow,  etc.,  and  accept- 

ance. 

[Title.] 

l^ow  came  the  parties  hereto,  by  their  attorneys,  and  the 
defendant  having  served  upon  the  plaintiff  [or  his  attorney]  an 
offer  in  writing  to  allow  judgment  to  be  taken  against  him 

2  See  note  to  Entry  No.  84. 


-514^5.]  REVIVOR    OF    ACTIONS.  43 

for  the  sum  of dollars,  and  tlie  plaintiff  Laving  accepted 

such  offer  and  given  notice  thereof  in  writing  to  the  defend- 
ant \_or  his  attorney],  within  five  days  after  the  service  of  such 
offer: 

It  is  now  therefore  considered  that  the  plaintiff,  A.  B.,  re- 
cover from  the  said  C.  D.  the  said  sum  of  § ,  and  his  costs 

herein  ex|)endc'(l. 

83.  (Sec.  5140.)     Jiulfjiiient  after  offer  to  allow,  etc.,  rejected. 
[Tttk.] 

Appeiut  to  the  usual  jw/gmeut  entry,  omitt'nuj  costs,  the  follow- 
ing:] 

And  the  amount  here  recovered  by  the  plaintiff'  not  being 
more  than  the  said  defendant  heretofore  in  writing  offered  to 
allow  judgment  to  be  taken  for,  it  is  ordered  that  the  plaint- 
iff' recover  only  his  costs  herein  expended  before  the  said 
offer,  and  that  he  pay  all  costs  thereafter  made  in  the  case. 

84.  (Sec.  5141.)     Judgment  after  offer  to  confess  part.^ 
[Title.] 

Append  to  the  usual  judgment  entry,  omitting  costs,  the  follow- 
ing : 

And  the  amount  here  recovered  by  the  plaintiff'  not  being 
more  than  the  said  defendant  has  heretofore  in  open  court, 

to  wit,  on  the day  of ,  18 — ,  off'ered  to  confess,  it  is 

ordered  that  the  plaintiff'  only  recover  his  costs  herein 
expended  before  the  said  offer,  and  that  he  pay  all  costs 
thereafter  made  in  the  case. 

SUBDIVISION  IV.— Revivor  of  actions. 

85.  (Sec.  5144.)     Judgment  of  abatement. 

86.  (Sees.  5146  and  5147.)     Suggestion   of  the  death  of  one  of 

several  parties. 

1  The  'offer  in  court  to  confess  judgment  for  part  of  the  amount  claimed," 
etc.,  which  section  498  (5141)  of  the  code  authorizes  the  defendant  to  malie  in 
Mil  action  for  the  recovery  of  money,  must,  to  be  effectual,  be  made  in  open 
court.  Therefore,  it  is  not  sufficient  for  a  defendant,  who  wishes  to  make  surh 
offer,  to  merely  place  a  written  offer  on  file  with  the  papers  in  the  case,  al- 
though the  plaintiff  may  have  notice  that  such  offer  has  been  so  made.  Fike 
V.  France,  12  Ohio  St.  624. 


44:  JOURNAL    EXTRIES.  [SEC.  5144- 

■'■7.   (Sec.  5149.)     Eepresentative  made  party,  and  action  revived. 

88.  (Sec.  5150.)     Conditional  order  of  revivor,  on   the  death  of 

the  plaintiff. 

89.  (Sec.  5150.)     Same,  on  the  death  of  the  defendant. 

90.  (Sec.  5152.)     Final  order  of  revivor. 

91.  (Sec.  5152.)     Order  of  revivor,  by  consent. 

92.  (Sec.  5159.)     Case  stricken  from  docket,  when  not  revived. 

93.  (Sec.  5160.)     Same,  after  notice  given. 

When  the  revivor  is  not  by  consent,  a  conditional  order  must  first  be 
made/  and  served  upon  the  adverse  party  in  the  same  manner,  and  re- 
turned within  the  same  time  as  a  summons ;  and  if  no  cause  be  shown 
to  the  contrary,  the  final  order  of  revivor  is  made." 

Section  411  [5158]  of  the  code  does  not  conflict  with  this  view;  that 
section  is  simply  a  limitation  of  the  time  within  which  the  order  must, 
and  after  which  it  can  not  be  made.^ 

If  the  order  is  made  by  consent  of  parties,  the  action  forthwith  stands 
revived." 

Where  one  of  the  defendants,  in  an  action  on  a  joint  contract,  dies 
l)efo re  judgment,  and  the  judgment  is  taken  against  all  the  defendants, 
without  any  suggestion  of  his  death,  or  making  his  representatives  par- 
ties, such  judgment  is  not  void,  but  merely  voidable.* 

The  right  to  revive  an  action,  under  title  13,  chapter  1,  of  the  code, 
is  not  dependent  on  the  di.scretion  of  the  court,  or  of  the  judge  mak- 
ing the  order,  but,  under  the  conditions  and  within  the  time  therein 
limited,  is  a  matter  of  right. ^ 

85.  (Sec.  5144.)     Judgment  of  abatement. 
[Title.'] 

Suggestion  of  the  defendant's  death  being  made  to  the 
court,  and  the  court  being  satisfied  of  the  truth  thereof,  this 
action  now  nbates. 

86.  (Sees.  5146  and  5147.)     Suggestion  of  the  death  of  one  of 

several  -parties. 
[Title. 1 
lSo^^■  comes ,  and  suggests  to  the  court  the  death  of 

K'ode,  sec.  5150.  ^Code,  sec.  51.52. 

■■'Hamilton  v.  Sals,  Lawrence  District  Court,  1859,  1  W.  L.  M.  403. 
■*  Swasey  &  Co.  v.  Antram  &  Co.,  24  Ohio  St.  87. 
s  Carter  v.  Jennings,  24  Ohio  St.  182. 


-3150.]  REVIVOR   OF    ACTIONS.  45 

R.  S.,  otie  of  the  parties  pluintifF  [or,  defendant]  herein,  und 
llio  action  [)roceeds. 

87.  (Sec.  5149.)     Representatice  made  party,  and  action  revived. 
[Title.] 

Now  comes  E.  F.,  and  snggests  to  tlie  conrt  the  deatli  of 
A.  ]>.,  the  i)hiintift'  [or,  of  C.  D.,  the  defendant]  herein,  and 
that  lie  is  tlie  duly  appointe<l  and  (pialified  a<lininistrator  [or 

other  representative]  of  the  said .  and  moves  the  court  for 

k'ave  to  hecome  a  party  to  this  artion,  and  to  continue  the 
same.  And  the  court,  findini^  the  suggestion  to  be  true, 
grants  said  motion  ;  and  said  K.  F.,  administrator,  etc.,  is  ac- 
cordingly made  party  i>hiintiff  [or,  defendant]  in  this  action, 
and  the  action  proceeds. 

If  the  revivor  be  by  supplemeutal  pleading,  as  provided  in  section 
5149,  the  only  journal  entry  necessary  is  one  allowing  the  supplemental 

pleading,  for  which  see  Entry  Xo.  65. 

88.  (Sec.  5150.)     Conditional  order  of  revivor  on  the  death  of  the 

plaintiff. 

[Title.] 

Xow  comes  R.  VT.  [or,  comes  the  defendant],'  and  suggests 
to  the  court  that  the  plaintiff  herein  has  died  since  the  com- 
mencement of  this  action,  and  that  he  [or,  that  K.  AV.]  has 
been  duly  appointed  and  qualified  as  executor  of  the  last  will 
and  testament  [or  name  other  capacity  of  representative  or  suc- 
cessor, as  provided  for  in  section  5154]  of  the  said  plaintiff. 
And  the  court  being  fully  satisfied  thereof,  it  is  now,  on  mo- 
tion of  the  said ,  ordered  that  this  action  be  revived,  and 

proceed  in  the  name  of  the  said  R.  W.,  executor  [or  other- 

represent'itive  or  successor],  as  aforesaid,  unless,  within-  

days  after  the  service  of  this  order  upon  said  [adverse  party] 
sufficient  cause  be  shown  against  said  revivor.^ 

1  See  sec.  5151.  ^  See  sec.  5152. 

^  See  note  1,  page  148  for  filling  this  blank. 


46  JOURNAL   ENTRIES.  [SEC.  5150- 

89.  (Sec.  5150.)     Conditional  order  of  revivor  on  the  death  of  the 

defendant. 

[Title.] 

Now  comes  R.  B.  [or,  comes  the  plaintiff],  and  suggests  to 
the  court  that  the  defendant  herein  has  died  since  the  com- 
mencement of  this  action,  and  that  he  [or,  that  R.  W.]  has 
been  duly  appointed  and  qualified  as  executor  of  the  last  will 
and  testament  [or  name  other  representative  or  successor,  as  pro- 
vided for  in  section  5156]  of  the  defendant.  And  the  court 
being  fully  satisfied  thereof,  it  is  now,  on  motion  of  the  said 

,  ordered  that  this  action  be  revived  in  the  name  of  R. 

B.   as   such  executor   [or  other  re-presevtative'],  and   proceed 

against  him,  unless  within ^  days  after  the  service  of  this 

order  upon  the  said  R.  B.,  sufficient  cause  be  shown  against 
such  revivor. 

90.  (Sec.  5152.)     Final  order  of  revivor. 
[Title:] 

]^ow  comes  the  said ,  and  the  conditional  order  of  re- 
vivor herein  having  been  duly  served  upon  the  said ,  and 

no  [or,  no  sufficient]  cause  being  shown  against  said  revivor, 
it  is  hereby  ordered  that  this  action  stand  revived  in  the 
name  of  R.  W.,  executor  [or  other  rejnesentative],  as  aforesaid, 
and  proceed  in  his  favor  [or,  against  him]. 

91.  (Sec.  5152.)     Order  of  revivor  by  consent. 
[Title.] 

Kow  comes ,  and  suggests  to  the  court  that  the 

has  died  since  the  commencement  of  this  action,  and  that 
L.  S.  has  been  duly  appointed  and  qualified  as  executor  of 

the  last  will  and  testament  of  the  said .     And  the  court 

being  fully  satisfied  thereof,  and  all  parties  consenting,  it  is 

hereby,  on  motion  of  the  said ,  ordered  that  this  action 

stand  revived  in  the  name  of  L.  S.,  as  said  executor,  and 
proceed  in  his  favor  [or,  against  him]. 

The  publication  provided  for  in  section  5153  should  be  approved  by 
an  order  of  court,  as  in  the  case  of  Constructive  Service  of  Summons, 
Entry  No.  83. 

^See  note  1,  page  148, 


-■>1G1.]  SUMMONING    AND    IMPANELING   JURY.  47 

1>2.  (Sec.  5159.)     Case  stricken  from  docket — when  not  revived. 

[Title.'] 

It  appearing  to  the  court  tl)at  tlie  herein  has  been 

(h'ad  for  more  than  one  year,  and  that  the  case  has  not  been 
iL'viv^ed  by  [or,  against]  his  representatives  or  successor,  it  is 

now,  on  motion  of ,  ordered  that  the  case  be  stricken 

from  the  docket. 

93.  (Sec.  51G0.)     Same,  after  notice  given. 

[Title.-] 

It  appearing  tliat  the  plaintiff  herein  died  at  a  former  term 
of  this  court,  and  tliat  ten  days'  notice  of  this  application 
has  been  given  to  S.  II.,  the  executor  of  the  said  plaintiff, 
and  that  said  executor  has  failed  to  revive  this  action,  it  is 
now,  on  motion  of  the  defendant,  ordered  tliat  the  action  be 
stricken  from  the  docket ;  and  that  the  defendant  recover 
from  the  estate  of  the  plaintiff"  his  costs  herein  expended 


CHAPTER  II. 

CONDUCT  OF  THE  TRIAL. 

Subdivision'  I.  Summoning  axd  impaneling  the  jury. 
II.  Trial  by  jlry,  and  verdict. 

III.  Trial  by  the  coirt. 

IV.  Trial  by  referee.'^ 

V.  Trial  by  mastei:  commi.-sioneu. 
VI.  Trial  on  appeal. 

SUBDIVISION  I. — Summoning  and  impaneling  the  jury. 

Apportionment  of  jurors — 
?>4.     (Sec.  5162.)     Order  fixinjj  number  of  jurors  for  the  year. 
'.•5.     (Sec.  5162.)     Order  amending. 

96.  (Sec.  5167.)     Order  directing  number  to  be  drawn,  etc. 
The  regular  petit  jury — 

97.  (Sec.  5168  )     Order  that  petit  jurors  be  drawn  for  special  term. 

98.  (Sec.  5172.)     Order  for  a  second,  or  a  new  petit  jury. 


48  JOURNAL  ENTRIES.  [SEC.  5162- 

99.     Entry  on  return  of  venire. 
100.     (Sec.  5172.)     Order  to  fill  when  panel  becomes  incomplete. 

Jury  fok  the  trial  of  any  particular  case — 

104.  (Sees.  5171   and  5173.)     Order  for  venire  for  talesmen  selected  by   the- 

court,  etc. 

105.  (Sees.  5171  and  5173.)     Same,  when  the  array  has  been  set  aside, 
lotj.     Entry  on  return  of  venire  in  last  two  cases — panel  complete. 

107.  Entry  on  return  of  venire — when  panel  incomplete. 

108.  (Sec.  5174.)     Order  that  venire  issue  to  coroner. 

109.  (Sec.  5175.)     Array  set  aside. 

Struck  jury' — 

110.  (Sec.  5187.)     Venire  returned,  sherifi"  ordered  to  summon  bystanders. 

111.  (Sec.  5188.)     Order  appointing  person  to  act  in  place  of  officer. 

Punishment  of  juror — 

112.  (Sec.  5178.)     Order  imposing  fine  for  refusal  to  serve. 

113.  (Sec.  5178.)     Order  fining  for  disobeying,  etc. 

114.  Order  fining  for  misbehavior. 

115.  Order  dismissing  proceedings. 

For  the  law  relating  to  juries  in  Hamilton  and  Cuyahoga  ocunties  see  78  O;. 
L.  95.  The  entries  under  it  are  in  the  same  form  as  under  the  general  law,  in- 
this  subdivision. 

Apportionment  of  jukors. 

94.  (Sec.  5162,  82  0.  L.  31.)     Order  fixing  the  number  of  jurors 
for  the  year. 

It  is  hereby  ordered  that  the  number  of  persons  to  l^e  se- 
lected in  this  county  of to  serve  as  grand  and  petit  ju- 
rors for  the  current  year,  in  the  several  courts,  be  fixed  at 


95.  (Sec.  5162  82  0.  L.  31.)      Order  amenditu/.or  for  adiltloval 
apportionmerit. 

It  a[ipeariiig  iliat  the  number  of  persons  heretofore  ordered 
to  be  selected  in  ihe  lOiinty  to  serve  as  o-pjind  ami  petit  jurors 
is  loo  small.  ["'%  I'lj  Sic  oltiii,  f^i  ().  I..  1»J7,  that  the  names 
of  the  persons  beret'  foi'e  sele(;ted  to  serve  as  jurors  for  the  sev- 
eial  courts  have  all  been  drawn  from  the  box,  or,  that  there  is 
not  a  sufficient  number  of  names  heretofore  selected  as  jurors 
for  the  several  courts  left  in  the  box  for  the  transaction  of  the 
bu.siness  of  said  courts  for  the  unexpired  portion  of  the  year,]j 


-oioS.]  SUMMONING  AND  IMPANELING  JURY.  40 

it  18  therefore  ordered  that ad'litional  persons  be  selected 

from,  by  apportionment  among,  the  several  townships  and 
wards  in  this  connty,  to  serve  as  grand  and  petit  jurors  as 
aforesaid. 

The  regular  petit  jury — 

Tlic  jury  law  dfjos  nui  draw  us  close  a  distinction  as  it  might  be- 
tween the  formation  of  the  rcguhir  petit  jury,  and  the  making  up 
of  a  jury  for  the  t  ial  of  any  particular  case. 

It  seems,  howevei',  to  nquii'e  a  full,  regular  })etitjury  at  the  begin- 
ning of  the  term.'  and  to  contemplate,  but  not  absolutel}'  to  require, 
its  being  kept  full  during  the  tt-rm.  If  it  bccijmcs  incomplete  by  rea- 
Hon  of  sickruHs,  ;ibs(  ncc  or  olhei-witie,  it  ma}'  be  made  comjdele  by 
the  court  of  its  own  nKdion.  first  exhausting  the  whole  number  of 
jiersons  summoned  as  |Ktit  jurors,'  and  after  thai  ordering  the 
names  required  lo  be  diawn  from  the  liox  by  tiie  clerk,  and  causing 
a  venire  to  bi;  is>ue(l  to  summijii  them  to  appear;  and  the  jurors  so 
added  shall,  for  the  remainder  of  the  term,  constitute  a  part  of  the 
regulai- jury.-  or  tin-  sini-iff  may.  ]»robably.  by  section  ,0171.  summon 
t.ilesiiu'ii  lo  supply  the  <letieien(y"  in  the  panel  of  the  regular  jury, 
at  any  time  after  the  juroi-s  first  summoned  ai-e  exhausted. 

'fhr  journal  entries  coneerniiiiJ:  the  formation  of  the  rcirular  jury 
are  entered  upon  the  j(Mirnal  as  general  (orders,  not  under  the  head 
ofau}'  ])articular  case. 

96.  (Sec.  oltJT,  86  0.  L.   51.)      Order  <lincting  the  number  of 
petit  jurors  lo  be  drawn  from  the- box. 

It  is  hereby  directed  that  at  the  next  reiinlar  drawing  of 
petit  jurors,  the  clerk  draw,  in  addition  ro  the  regular  number, 
ballots  antl  that  the  persons  named  thereon  be  sum- 
moned with  the  others  as  petit  jurors  in  this  court. 

97.  (Sec.  5168,  82  O.  L.  31.)     Order  that  petit  jurors  be  drawn 
Jot  speciid  term. 

The  clerk  of  this  court  is  hereby  directed  to  draw  forth- 
with from  the  jury  box  the  names  of  twelve  persons  to  serve 

^See  sec.  5167,  as  amended,  82  O.  L.  91. 
-Seesec.  5172,  82  0.  L.  167. 


50  JOURNAL   ENTRIES. 

as  petit  jurors  at  a  special  term  of  this  court;  and  a  venire  is 
ordered  accordingly  for  the  appearance  of  said  jurors  on  the 
day  of ,  18 — . 

98.  (Sec.  5172,  82  O.  L.  167.)     Order  for  a  second  or  a  new 
petit  jury. 

It  being  necessary  by  reason  of  [^state  cause']  to  have  two 
petit  juries,  [or,  a  new  petit  jury,]  it  is  ordered  that  the  names 

of jurors  therefor  be  drawn  from  the  box  by  the  clerk  of 

the  court,  and  that  a  venire  be  issued  summoning  them  to 
appear  on  the inst. 

Upon  the  return  of  the  regular  venire  for  jurors,  as  well  as  upon 
the  return  of  any  special  venire,  a  journal  entry  should  be  made 
showing  the  return  of  the  sheriff,  the  appearance  of  the  jurors  on 
their  names  being  called,  and  any  direction  that  the  court  may 
give. 

99.  Entry  on  return  of  a  venire  facias  for  petit  jury. 

The  venire  facias  heretofore  issued  for  petit  jurors,  return- 
able [state  time^,  was  this  day  returned  by  the  sheriff  of  this 
county,  with  his  indorsement  thereon  as  follows,  to  wit : 

18 — ,  February  5th.  Served  the  witbin,  etc.  [Copy  re- 
turn.'] 

And  upon  calling  the  same  in  open  court,  C.  D.  was  for 
good  cause  excused  and  his  name  returned  to  the  box  [or.,  his 
name  by  order  of  court  not  returned  to  the  box]'*  and  the 
panel  filled  by  the  followini*:  named  persons  who  appeared  in 
answer  to  the  call,  viz :  A.  B.,  E.  F.,  G.  H.,  [to  the  number 
of  twelve^ 

If  the  names  are  exhausted  without  completing  the  panel,  make 
the  record  as  above  to  *  and  continue  : — 

And  the  panel  being  incomplete,  the  sheriff  summoned  R. 
H.  and  S.  T.  to  make  up  the  deficiency,^  and  the  panel  was 
completed. 

1  By  sec.  5170,  78  0.  L.  109. 

»  By  sec.  5167,  as  amended,  86' 0.  L.  51. 

'By  sec.  5171. 


-5173.]  SUMMONING    AND    IMPANELING    JURY.  51 

100.  (Seo.  5172,  82  O.  L.  1G7.)     Order  to  fill  when  prmel  becomes 
meant  plete. 

Tlie  panel  of  the  regular  petit  jury  having  hecorae  incom- 

])lete,  it  is  ordered  that  the  nanie.s  of  jurors  he  drawn 

Crom  the  ho.x,  to  1111  up  the  same,  and  that  a  venire  issue  sum- 
moning them  to  ap[icar  on  the day  of ,  18 — ,  at 

o'clock  A.  M. 

Jury  for  the  trial  of  any  particular  case. 

All  entries  re(piirt<l  in  this  ease  should  be  made  under  tlie  title 
of  tiie  action  i\)V  the  ti'ial  (d' which  tiio  jury  is  called. 

The  parties  to  an  action  may  try  it  before  the  regular  j)etit  jury, 
<)!•  may  have  a  stfuck  jury.' 

In  the  first  case,  if  tiie  panel  of  the  regular  jur}'  is  not  full  when 
tlie  cause  comes  for  trial,  or  if  any  of  the  jurors  are  challer)ged,'^ 
the  deficiency  may  he  supplied,  for  that  trial  onl}'.  by  talesmen 
summoned  by  the  sheriff.'  unless  on  application  the  judge  makes 
the  srleclion  ;'  but  no  |)ri-soM  Icnowti  to  be  present  in  or  about  the 
<;ourt-h()use  shall  be  summoned  unless  both  parties  assent  thereto.* 
Oi',  the  talesmen,  needed  to  complete  the  jjanel,  may  prohabh'  be 
summoned  as  regulai' jurors,  either  by  the  sheriff  under  section  5171, 
or  by  the  judije  orderins.;  the  names  to  be  drawn  from  the  box,  un- 
der section  5172,  82  O.  L.  1G7,  as  in  entry  iSu.  lUO. 

104.  (Sees.  5171  and  5173.)  Order  for  venire  for  talesmen  se- 
lected by  the  court  when  a  sufficient  number 
of  jegular  jurors  not  present. 

{Title.'] 

And  now,  the  petit  jury  being  incomplete  by  reason  of 
challenge  [or  other  cause],  it  is  ordered,  on  motion  of  the 
plaintiif  [or,  defendant]  herein,  that  a  venire  issue  for  D.  B., 
A.  H.,^  etc.,  to  make  up  the  deficiency  for  the  trial  of  this 
case ;  which  said  venire  shall  be  returnable  forthwith  [or  at 
any  specified  time]. 

1  Sec.  5185.  2Sec_5i76.  »  Sec.  5171.  *  Sec.  5173. 

^  Can  not  be  any  one  known  to  be  in  or  about  the  court-house,  without  con- 
sent of  both  parties.     See  sec.  5173. 


52  JOURNAL  ENTRIES.  [SEC.  5173— 

lOJ.   (Sees.  5171  and  5173.)     Same  as  last  when  the  array  has- 
been  set  aside. 
[Title.'] 

The  army  of  the  regular  petit  jury  having  been  set  aside, 
it  is  now,  on  motion  of  the  plaintiff  \or,  defendant]  herein, 
ordered  that  a  venire  issue  for  D.  B.,  A.  H.,  K.  M.,  etc.,  as 
jurors  for  the  trial  of  this  case,  returnable  forthwith  [or  at 

amj  specified  time.'] 

lOG.  Entry  on  the  return  of  the  venire  in  last  two  cases;  panel' 
complete. 

[Title.] 

The  venire  herein  issneil,  returnable  this  day,  was  duly  re- 
turned by  the  sheriif,  ^\•irh  his  indorsement  tliereon,  as  follows,, 
to  wit:   [copy  the  return.] 

And,  upon  calling  the  same  in  open  court,  D.  B.,  A.  H.,. 
etc.,  ajipeared  in  answer  to  tlie  call  of  their  names,  and  on 
ttiotion  were  accepted  as  jurors,*  and  the  panel  was  complete. 

107.  Entry  on  return  of  venire  when  panel  incomplete. 
[Title.] 

Same  form  as  last  ti>  *  and  continue:] — and  the  pane) 
beino-  incomplete,  it  was  ordered  that  a  venire  issue  for  L.  IS. 
and  T.  R.,  returnable  forthwith. 

108.  (Sec.  5174.)     Order  that  cenire  issue  to  coroner. 
[Tide.] 

It  i)eing  made  to  appear  to  the  court  that  the  sheriff  is  in- 
terested  in   this  cause,  on  motion   of  the ,  it  is  ordered 

that  a  special  venire  be  directed  to  the  coi'oner  of  the  county,. 
commanding  him  to  summon  a  jury  to  try  this  cause. 

If  the  coroner  is  interested  also,  state  the  fact,  and  (jrder  that  the 
special  venire  be  directed  to  any  other  discreet,  disinterested  per- 
son. 

lt)9.  (Sec.  5175,  81  O.  L.  43.)     Array  set  aside. 
[7  die.] 
And  now  the havmi^  challenged  the  array  o^'the  jury 


-5188.]  SDMMONINO  AND  IMPANELING  JURY.  53 

ill  this  case,  an  J  it  apiieariiig  to  the  court  that  [state  causr], 
it  is  ordered  that  the  said  array  bo,  and  it  hereby  is,  set  aside, 
and  said  jurors  are  disch;iri:ed. 

The  array  hi-iiii^  set  aside,  the  court  ma}',  on  its  own  motion,  by 
Htclion  5172,  oi'der  a  new  re^^ul.tr  petit  jury  to  be  drawn  from  tlie 
l)ox,  for  which  see  entry  No.  100;  or,  by  section  5171,  the  defi- 
^•ietiey  may  be  made  up  by  talesmen  summoned  by  the  sheriff.  In 
the  hittei-  case  no  journal  entry  appears  to  be  necessar}'.  Or,  by 
section  5173,  the  talesmen  may,  on  motion  of  either  party,  be  se- 
lected by  the  court,  and  a  venire  be  issued  for  the  persons  selected, 
for  which  see  entry  No.  105. 

For  entries  under  section  517S  see  pages  54  and  55. 

Struck  jury. 

The  struck'  jury  is  made  up  as  provided  by  section  5185,  et  seq.  of 
tlie  code,  atid  no  oi'dcr  of  the  court  is  needed,  unle.ss  the  sixteen  ju- 
rors are  exhausted  without  completing  the  panel. 

But  on  tlie  sheriffs  return  of  the  venire  facias  issued  to  him,  an 
iMitr}'  should  be  made  of  the  same,  under  the  title  of  the  case,  as 
lollows  : 

If  the  )ianol  is  c()m]dete,  use  form  of  entry  No.  100.  If  incom- 
plete and  on  motion  of  either  parly,  the  court  select  the  persons 
to  fill  tlio  panel,  use  form  of  eiiiiy  No.  107.     If  it  is  filled  from  the 

bystaiidci's  make  eiiliy  as  tolhjws  : 

110.  (Sec.  5187)      Venire  returned,  sheriff  ordered  to  summon 

bystanders. 
[Title.] 

As  i)i  entry  iVo.  106  as  far  as  *.  n)h/  codinuf^ :] — and  the 
panel  being  incomplete,  the  court  orderctl  the  sheritf  to  sum- 
mon from  among  the  bystanders  so  many  good  and  hiwful 
men  as  are  necessary  to  complete  the  same ;  whereupon  the 
following  named  persons  were  called,  to  wit  [name  persons], 
and  the  panel  was  complete. 

111.  (Sec.   5188.)      Order  appointing  person  to  act  in  place  of 

officer. 
{Title.] 
It  appearing  that  R.   M.,  the  recorder  [or,  clerk,  or,  aud- 


54  JOURNAL    ENTRIES.  [SEC.    5188— 

itor]  of  the  county,  is  [state  cause],  S.  R.  is  hereby  appointed 
to  take  the  place  of  the  said  R.  M.  iu  selecting  and  striking- 
the  jury  demanded  in  this  case,  and  to  do  all  things  required 
to  be  done  by  the  recorder  when  acting  in  this  behalf. 

Punishment  of  juror — 

If  the  offending  juror  is  not  before  the  court,  he  may  be  brought  in 
by  regular  proceedings,  as  in  case  of  contempt,  for  Avhich  see  Con- 
tempts OF  Court. 

If  the  juror  is  present  in  court,  the  investigation  of  his  contempt 
may  be  had  at  once,  and,  if  found  guilty,  a  fine  be  imposed  upon  him,, 
Avhich  fine  may  be  collected  by  execution. 

112.  (Sec.  5178.)     Order  imposing Jine  for  refusal  to  serve. 
[Title.] 

And  now  M.  K.  having  been  summoned  as  a  juror  in  this; 
case,  and  having  refused  to  serve  as  such,  was  examined  un- 
der oath  touching  his  said  refusal ;  and  the  court  finding  no. 
reasonable  cause  therefor,  find  that  he  has  been  guilty  of  a 
contempt  of  court. 

It  is  therefore  ordered  and   adjudged  that   a  fine  of 

dollars^  be,  and  hereby  is,  imposed  upon  the  said  M.  'N.,  and 
that  he  pay  the  costs  of  this  proceeding ;  and  execution  is 
awarded  therefor. 

113.  (Sec.  5178.)     Order  fining  for  disobeying,  etc. 
[Title.] 

And  now  iST.  R.,  one  of  the  jurors  duly  qualified  herein,, 
having  been  charged  with  disobeying  the  order  of  the  court 
[state  in  what  'particular],  was  examined  *  under  oath  [and 
upon  testimony  of  witnesses]  touching  his  said  ofifense. 
And  the  court  find  said  charge  to  be  true,  and  that  the  said 
[N".  R.  is  thereby  guilty  of  a  contempt  of  court. 

It  is  therefore  ordered  and  adjudged  that  a  fine  of 

dollars^  be,  and  hereby  is,  imposed  upon  the  said  IS.  R.,  and 
that  he  pay  the  costs  of  this  proceeding ;  and  execution  is- 
awarded  therefor. 

^Can  not  exceed  thirty  dollars. 

*Can  not  exceed  one  thousand  dollars. 


-5189,]  TRIAL    BY    JURY    AND    VERDICT.  55 

114.  Order  fining  for  misbehavior. 
[TilU.'\ 

And  now  X,  R.,  one  of  the  jurors  duly  qualified  herein, 
having  been  charc^cd  with  misbehavior  in  this,  to  wit:  [state 
pa7iiculars'\,  was  examined,  etc.  [as  from  *,  in  last  order. 

115.  Order  dismissing  proceedings. 
[Tille.] 

As  in  No.  113  io  *,  and  conclude:'] — under  oath  and  upon 
testimony  of  witnesses  touching  his  said  offense,  and  the 
court  find  that  said  charge  is  not  sustained. 

It  is  therefore  ordered  and  adjudged  that  these  proceedings 
against  the  said  X.  li.  be,  and  they  are  hereby,  dismissed  at 
the  cost  of . 

SUBDIVISION  II. — Trial  by  jury  and  verdict. 
Formula  I;  Jury  impaneled  and  sworn. 
110.  Entry  when  verdict  is  returned  on  the  day  the  trial  is  begun. 

Cause  progressed — 

117.  Cause  progressed — first  day. 

118.  Cause  progressed — succeeding  day. 

119.  Cause  progressed — verdict  given. 

Forms  op  verdict. 

Sealed  verdict — 

120.  Order  for. 

View  of  property — 

121.  (Sec.  5191.)     Order  for  jury  to  view. 

Discharge  ov  the  jury  before  verdict — 

122.  (Sec.  5195.)     For  sickness  or  other  calamity. 

123.  Order  that  cause  proceed  with  eleven  jurymen. 

124.  Order  substituting  juror. 

125.  (Sec.  5195.)     Jury  discharged  by  consent. 

126.  (Sec.  5195.)     Being  unable  to  agree,  jury  discharged. 

127.  Juror  withdrawn,  and  case  continued. 

Arrest  of  testimony  from  jury — 

128.  Evidence  withdrawn,  and  judgment  for  defendant. 

If  the  trial  proceeds  regularly  and  without  interruption  to  the  rendi- 
tion of  the  verdict  and  the  judgment  of  the  court,  the  forms  in  all 
cases  are  very  similar.  But  various  interlocutory  orders  may  also  be 
made  during  the  trial,  or  the  trial  may  not  come  to  a  verdict. 

The  first  entry  after  the  jury  is  formed,  as  shown  in  the  last  subdi- 


56  JOURNAL    ENTRIES.  [SEC.  5190- 

vision,  will  show  the  impaneling  and  swearing  of  the  jury.  The  entry 
as  a  formula  to  be  prefixed  to  any  subsequent  order  is  given  below. 

FORMULA    I  ;    JURY    IMPANELED    AND    SWORN. 

[Title.] 

This  day  came  tlie  parties  herein,  by  their  attorneys;  also 
came  the  following-named  persons  as  jurors,  to  wit: 

1.  A.  B.  7.  J.  Iv. 

2.  C.  I>.  8.  M.  P. 
etc.  etc. 

who  were  duly  impaneled  and  sworn  according  to  law ;  and 
thereupon  the  case  came  on  for  hearing  on  the  pleadings  and 
evidence. 

If  the  trial  is  completed  on  the  day  it  is  begun,  make  the  entry  as 
follows : 

116.  Entry  on  return  of  verdict. 

[Title.] 

Formula  above,  and  continue ;] — 

And  after  hearing  the  evidence,  argument,  and  charge  of 
the  court,  the  jury  retired  to  their  room,  in  charge  of  the 
sheriff,  for  deliberation. 

And  now  comes  said  jury  into  open  court  with  their  ver- 
dict in  writing,  signed  by  their  foreman,  and  say  •}  "  We,  the 

jury,  find,  on  the  issue  joined,  for  the  ,  and  assess  his 

damages  at dollars." 

[Signed,]  C.  D., 

Foreman. 

If  the  jury  is  polled,  as  provided  for  in  sec.  5198,  add:] 
And  the  jury  being  polled,  on  the  request  of  the ,  each 

juror,  on  being  inquired  of  if  it  was  his  verdict,  answered  in 

the  affirmative. 

Cause  progressed — 

If  the  trial  is  not  completed  on  the  day  it  is  begun,  the  entry  should 
show  the  stage  of  proceeding  reached ;  and  on  each  succeeding  day  an 

^The  verdict  or  finding  must  be  filed  with  the  clerk  and  entered  on  the  jour- 
nal.   Sec.  5201.     For  forms  of  other  verdicts,  see  pages  58  and  59. 


-5190.]  TRIAL    BY   JURY    AND    VERDICT.  57 

entry  should  show  the  proceedings  had,  until   the   trial  is  concluded. 
This  furnishes  a  warrant  for  paying  the  jurors'  fees. 

The  following  are  given  as  examples  of  the  orders  that  may  be  made: 

117.  Cause  progressed — -first  day. 
\_Title.] 

Formula,  p.  56,  and  continue ;] — 

And  the  said  jury  having  heard  the  testimony  adduced  in 
part,!  said  cause  was  continued  until  to-morrow  morning  at 
10  o'clock. 

Or  say  ;] — 

fThe  court  adjourned  until  to-morrow  morning  at  10 
o'clock. 

118.  Cause  progressed — second,  or  succeeding  day. 
[Title.] 

This  day  again  came  the  said  parties,  by  their  attorneys, 
and  also  came  the  jury  heretofore  impaneled  and  sworn,* 
and  the  trial  proceeded.  And  the  said  jury  having  heard 
the  remaining  testimony,  the  argument,  and  charge  of  the 
court,. retired  to  their  room,  in  charge  of  the  sheriff",  for  de- 
liberation.f  And  the  hour  of  adjournment  having  arrived, 
the  court  discharged  said  jury  until  to-morrow  morning  at 
10  o'clock. 

Or  say :] — 

fAnd  the  parties  not  being  ready  to  proceed  with  the  trial, 

it  was  continued  until,  etc. 

On  the  day  that  the  verdict  is  rendered,  take  up  the  proceedings  at 
the  point  reached  the  day  before,  and  conclude  with  the  verdict.  For 
example : 

119.  Cause  progressed — verdict  given. 
[Title.] 

This  day  again  came  the  said  parties,  by  their  attorneys, 
and  also  came  the  jury  heretofore  impaneled  and  sworn 
herein,  and  retired  to  their  room,  in  charge  of  the  sheriff",  for 
further  consultation.* 


58  JOURNAL    ENTRIES.  [SEC,  5190- 

And  now  come  the  said  jury  into  open  court  witli  their 
verdict  in  writing,  signed  by  their  foreman,  and  say:  \_co2:)}/ 
verdict;  and  if  the  jury  is  jJoUed,  add  as  after  Entry  116.] 

Forms  of  verdict — 

The  verdict  of  a  jury  is  either  general  or  special.  A  general  verdict 
is  that  by  which  they  pronounce  generally  upon  all  or  any  of  the  issues, 
either  in  favor  of  the  plaintiff  or  defendant.  A  special  verdict  is  that 
by  which  the  jury  finds  the  facts  only.^  It  must  find  the  truth 
of  the  facts.  It  will  not  do  to  refer  the  evidence  to  the  court  and  ask 
their  judgment  upon  it.'^  And  to  authorize  a  judgment  on  it,  all  the 
facts  essential  to  the  right  of  the  party  in  whose  favor  judgment  is  to 
be  rendered,  must  be  found  by  the  jury.^^ 

The  verdict  or  finding  must  be  filed  with  the  clerk  and  entered  on 
the  journal.* 

The  forms  of  verdict  may  be  as  follows : 

General  verdict  for  damages. 
"We,  the  jury,  iind  on  the  issue  joined  for  the  plaintiff 

[or,  defendant],  and  assess  his  damages  at dollars." 

CD., 

Foreman. 
General  verdict  for  defendant. 
"We,  the  jury,  find  on  the  issue  joined  for  the  defendant." 

C.  D., 

Foreman. 
Special  verdict. 

"We,  the  jury,  on  the  issue  joined,  find  that,  at  the  time 
the  debt  was  contracted,  there  was  a  firm  doing  business  as 
J.  E..  R.  &  Co.,  and  that  R.  and  K.  were  members  of  the  firm." 
[Signed,]  C.  D., 

Foreman, 

If,  by  direction  of  the  court,  special  questions  have  been  submitted 
to  the  jury  for  answer,  the  verdict  may  be  as  follows : 

iSec.  5200.     See  also  Hambleton  v.  Dempsey  &  Co.,  20  Ohio,  168. 

*  Leach  v.  Church,  10  Ohio  St.  148. 

3  Blake's  Lessees  v.  Davis,  20  Ohio,  231. 

*Sec.  5201. 


-5195.]  TRIAL    BY    .H'RY    /ND    VERDICT.  59 

General  verdict,  initli  special  Jind in;/  on  particular  questions. 

"We,  the  jury,  on  the  general  issue  joined,  lind  for  the 
,  and  assess  his  damages  at  dolhirs.  And  in  re- 
sponse to  tlic  questions  {trojiouiKhMl  to  us,  we  return  the 
same  witli  our  special  tindini^s  tliereon,  as  follows: 

1.  "Was  there,  at  the  time  tlie  deht  was  contracted,  such 
a  firm  doing  business  as  J.  Iv.  li.  &  Co.?"     Answer.     "Yes." 

2.  "Were  R.  &  K.  members  of  the  firm,  if  it  existed?" 
Answer.    "  ;N'o." 

3.  "If  not  members  of  the  firm,  then  did  their  acts,  de- 
clarations, or  mode  of  doing  business,  induce  the  plaintifiTto 
believe  them  to  be  partners  of  R.  &  Co.?"    Answer.     "Yes." 

[Signed,]  C.  I)., 

Foreman. 

Sealed  verdict — 

If,  at  the  liour  of  adjouriunent,  the  jury  have  not  agreed  upon  a 
verdict,  but  there  is  a  i)robabiIity  of  their  agreeing  before  the  next 
morning,  the  court  may,  upon  adjournment,  leave  the  jury,  with  in- 
structions to  return  tlieir  verdict  scaled  at  some  specified  time. 

120.  Order  for  scaled  verdict. 
[Title.] 

As  in  Ao.  118  to  f,  <^'>^d  continue:]  —  and  the  hour  of 
adjournment  liaving  arrived,  the  court  orders  that,  if  said 
jury  agree  upon  a  verdict,  they  return  the  same  scaled  to  this 
court  to-morrow  morning  at  10  o'clock. 

View  of  property — 

121.  (Sec.  5191.)     Order  for  jury  to  view. 
[Title.] 

On  motion,  it  is  ordered  that  the  jury  be  conducted  in  a 
body,  in  charge  of  the  sheriif,  to  view  the  premises  in  con- 
troversy herein,  and  that  the  same  be  shown  to  them  by  F. 
G. ;  and  that  they  return  to-morrow  morning  at  10  o'clock. 

Discharge  of  the  jury  before  verdict — 

122.  (Sec.  5195.)     For  sickness  or  other  calamity. 
[Title.] 

This  day  again  came  the  said  parties,  by  their  attorneys,, 
and  it  appearing  that  L.  M.,  one  of  the  jurors,  is  unable,  by 


•60  JOURNAL    ENTRIES.  [SEC.  5195- 

reason  of  sickness  [or  other  calamity'],  further  to  attend  this 
trial,*  the  court  therefore  discharge  the  said  jury  without 
day  ;  and  the  case  is  continued. 

If  the  parties  desire  to  go  on  with  the  trial,  iu  case  of  disability  of 
a  juror,  one  of  the  two  following  entries  may  be  made. 

123.  Order  that  case  proceed  with  eleven  j  my  men,  by  consent. 
[Title.] 

As  171  last  to  *,  and  continue:] — and  the  remaining  eleven 
jurors  heretofore  impaneled  and  sworn,  now  coming,  the 
trial,  by  consent  of  both  parties,  proceeded. 

124.  Order  suhstitutiiig  juror,  by  consent. 
[Title.] 

As  in  No.  122  to  *,  ami  continue:] — and  the  remaining 
eleven  jurors  heretofore  impaneled  and  sworn,  now  coming, 
hy  consent  of  both  parties,  M.  ^N".  is  summoned  and  called 
from  the  bystanders,  and  substituted  for  the  said  L.  M.  as  a 
juror  in  this  case,  and  is  sworn  accordingly;  and  the  trial 
proceeds. 

125.  (Sec.  5195.)     Jury  discharged  by  consent. 
[TUle.] 

This  day  again  came  the  said  parties,  by  their  attorneys ; 
also  came  the  jury  heretofore  impaneled  and  sworn.  And, 
by  consent  of  both  parties,  the  court  discharged  the  said 
jury  without  day,  and  the  case  is  continued  at  the  cost  of 
the . 

126.  (Sec.  5195.)     Being  unable  to  agree,  jury  discharged. 
[Title.] 

This  day  came  the  said  parties,  by  their  attorneys  ;  also 
came  the  jury  heretofore  impaneled  and  sworn,  and  retired 
to  their  room,  in  charge  of  the  sheriff,  for  farther  consulta- 
tion. 

And  now  come  said  jury  into  open  court,  and  state  that 
they  are  unable  to  agree  upon  a  verdict ,  whereupon  they 
are,  by  the  court,  discharged  from  further  consideration  of 
this  case,  and  the  case  is  continued. 


-5203.]  TRIAL    BY    JURY    AND    VERDICT.  61 

127.  Juror  icUhdraion  by  consent,  and.  ease  continued. 

[7itle.] 

This  day  again  came  the  said  parties,  by  their  attorneys, 
and  the  jury  lieretolbre  inipaiK-led  and  sworn  ;  and,  l»y  con- 
sent of  parties,  one  of  the  said  jnrors  is  withdrawn  from  the 
panel,  and  tlie  residne  of  the  said  jury  is  discliargcd  from 
further  consideration  of  the  case,  and  the  cause  is  continued 
at  the  cost  of  the . 

Arrest  op  testimony  from  jlry — 

Nonjsuit  at  coimnon  law,  aiitl  as  recugnized  in  Ohio  heture  the  code, 
was  voluutary  or  by  orilt-r  of  the  court.  Vnhnitary  uonsiuit  occurred 
upon  the  plaintiff  voluntarily  failing  to  follow  (»r  i)ursue  his  complaint,' 
It  would,  under  tlie  practice  in  Ohio  befuri'  the  code,  bo  nnlcred  I»y  the 
court  only  when  tliere  was  some  essential  fact  to  the  plaintiH"s  claim, 
to  establish  which  no  evidence  had  been  given.  If  evidence,  however 
sliirht,  tendinis'  to  i)rove  all  the  facts  essential  to  make  out  a  case  for 
the  {)hiintitf  had  Ix'on  given,  the  motion  wa.s  denied.' 

The  effect  of  a  nonsuit  was  not  final,  the  plaintiff  being  at  liberty  to 
roconuuencc  his  action.' ' 

Under  the  code,  and  since  the  act  of  April  12,  1858  (2  S.  &  C. 
1155),  the  court  is  authorized  in  a  proper  case  to  arrest  the  testimony 
from  the  jury,  and  render  judgment  for  the  defendant.  But  such 
judgment  has  not  the  effect  of  a  nonsuit  at  common  law,  but  is,  under 
the  provision  of  the  code  (sec.  372,  Rev.  Stat.  5314),  a  decision  of  the 
action  upon  the  merits.*  It  is  substantially  the  same  as  the  submission 
of  the  case  to  the  jury  under  instructions  to  return  a  verdict  for  the 
defendant,  the  same  result  being  reached  in  either  case.*  So  that  a 
nonsuit,  as  understood  at  common  law  and  in  Ohio  before  the  code,  is 
at  present  unknown. 

The  conditions  making  it  proper  for  the  court  to  withdraw  the  evi-- 
dence  from  the  jury  and  render  judgment  for  the  defendant,  are  the 
same  as  authorized  a  nonsuit  before  the  code.  If  the  evidence  tends  to 
prove  all  the  facts  which  it  is  incumbent  on  the  plaintiff  to  establish 
in  order  to  maintain  his  action,  he  has  a  right  to  have  the  weight  and 
sufficiency  of  the  evidence  passed  upon  by  the  jury,  and  it  is  error  for 
the  court  to  grant  the  motion,  and  render  judgment  against  him.* 

1  3  Bl.  31G,  377. 

«  Ellis  &  Morton  v.  Ohio  Life  Ins.  and  Trust  Co.,  4  Ohio  St.  C28. 

3  Reod  V.  C;irpent»^r,  2  Ohio,  87. 

*  Stockstill  V.  D.  &  M.  R.  R.  Co.,  24  Ohio  St.  8G. 


62  JOURNAL   ENTRIES.  [SEC.  5204- 

But  if  there  is  a  fact,  without  the  establishment  of  which,  the  plaint- 
iff can  not  maintain  his  action,  and  no  evidence  be  offered  to  j^rove  it, 
then,  upon  motion  of  the  defendant,  the  court  may  order  that  the  evi- 
dence be  withdrawn  from  the  court  or  jury,  and  judgment  be  rendered 
for  the  defendant.     And  it  will  be  a  decision  upon  the  merits. 

128.  Evidence  withdrawn,  and  judgment  for  defendant. 

[^Title:\ 

Formula  1,  p.  56,  and  continue  ■] — 

And  the  evidence  for  the  plaintiff  being  heard,  the  defend- 
ant thereupon  moved  the  court  to  arrest  the  testimony  from 
the  jury,  and  for  judgment;  and  the  argument  of  counsel 
being  heard  thereon,  the  court,  on  consideration,  grant  the 
same. 

It  is  therefore  considered  by  the  court  that  the  evidence  of 
the  plaintiif  be  withdrawn  from  the  jury,  and  that  said  jury 
be,  and  hereby  are  discharged  from  further  consideration  of 
this  case ;  and  that  the  defendant  go  hence  without  day,  and 
recover  from  the  plaintiff'  his  costs  herein  expended. 


SUBDIVISION  III.— Trial  by  the  court. 

129.  (Sec.  5205.)     Finding  by   the  court   on  issue   triable   only   by    the 

court. 
129a.  (Sec.  5205.)     Finding  by  the  court — jury  waived. 

130.  (Sec.  5205.)     Separate  finding  of  fact  and  law. 

131.  (Sec.  5207.)     Judgment  on  controversy  submitted. 

It  is  usual  to  enter  judgment,  on  trial  by  the  court,  at  the  time  of 
making  the  finding,  unless  there  be  a  special  reason  for  delaj'ing  the 
judgment;  and  if  a  new  trial  is  desired  by  either  party,  the  motion 
and  order  will  be  "to  set  aside  the  judgment  and  for  a  new  trial."  As 
judgments  entered  in  this  way  have  several  times  been  reviewed  by 
the  supreme  court,  without  any  objection  on  that  point  being  raised, 
the  practice  seems  to  be  sanctioned. 

But  as  the  finding  of  the  court  is  sometimes  made  and  entered,  like 
a  verdict  of  the  jury,  before  the  judgment,  forms  are  here  given.  It 
is  only  required  by  the  statute  that  the  court  state  its  finding,  gener- 


-5206.]  TRIAL    BY    THE    COURT.  63 

ally,  for  plaintiff  or  defendant,  unless  requested  by  one  of  the  parties 
to  make  a  separate  finding  of  facts  and  law.     (See  sec.  5205.) 

The  cases  to  l)e  tried  hy  the  court  arc,  fird,  those  wherein  the  issue 
is  primarily  triable  by  the  court  alone;'  or,  second,  such  as  are 
primarily  triable  by  jury,  in  which  ihe  jury  is  waived.'  The  formal 
begiuuiuj^  of  the  judgment  entries  are  usually  different  in  the  two 
cases. 


129.  (Sec.  5205.)     Finding  by  t/ic  court  on  issue  triable  only  by 
the  court. 
[Title.] 

This  cause  now  coming  on  for  hearing,  was  suhmittcd  to 
the  court  upon  the  pleadings  [or  the  several  pleadings  may  be 
particularly  named]  and  the  evidence;  and,  on  consideration 
thereof,  tlu;  coni't  find  on  the  issue  joined  tor  the  jdaintiff 

[or,  defendantj,  and  iind  that  the is  indebted  to  him  in 

the  sum  of dollars. 


129a.  (Sec.  5205.)     Finding  by  the  court^ury  waived. 

[Title.] 

This  cause  now  coming  on  for  liearing,  and  a  jury  having 
been  waived,  was  submitted  to  the  court  u[)on  the  pleadings 
[or  the  several  pleadings  may  be  particularly  7ia)ned]  and  the 
evidence ;  and,  on  consideration  tliereof,  the  court  find 
on  the  issue  joined  for  the  plaintiff"  [or,  defendantj,  and 
find  that  the is  indebted  to  him  in  the  sum  of dol- 
lars. 

180.  (Sec.  5205.)     Separate  Jinding  of  fact  and  laic. 

[Title.] 

This  cause  now  coming  on  for  hearing,  and  a  jurv  being 
waived,  was  submitted  to  the  court  on  the  pleadings  and  evi- 
dence.    And  the  court  being  fully  advised  in  the  premises, 

on  the  request  of  the  that  its  conclusions  of  fact  be 

stated  separately  from  its  conclusions  of  law,  find,  as  its  con- 
clusions of  fact,  that  [give  finding .] 

iSee  sees.  5130  and  5131. 


64  JOURNAL   ENTRIES.  [SEC.  5207- 

Aiid  as  its  conclusions  of  law  upon  the  above  facts,  the 
court  find  that  [c/ive  jindwg]} 

131.  (Sec.  5207.)     Judgment  on  controversy  submitted? 

llitle.'] 

This  day  came  the  parties  above  named,  and  presented  to 
the  court  a  submission  of  a  question  of  difierence  between 
them  upon  an  agreed  statement  of  facts.  And  the  court, 
upon  due  consideration  thereof,  upon  said  statement,  find  the 
law  of  the  case  to  be  with  the  said  A.  B.,  and  find  that  the 
said  C.  D.  is  indebted  to  him  in  the  sum  of  $ . 

It  is  therefore  considered  by  the  court  that  the  said  A.  B. 

recover  from  the  said  C.  D.  the  said  sum  of dollars,  and 

that  the  said  C.  D.  pay  the  costs  of  this  proceeding;  for  all 
of  which  execution  is  awarded. 


SUBDIVISION  lY.— Trial  by  refereks. 

132.  (Sec  5210.)     Order  of  reference,  for  trial. 

133.  (Sec.  5210.)     Order  of  reference  to  ascertain  and  report  the  facts. 

134.  (Sec.  5212.)     Order  substituting  referee,  etc. 

135.  Order  to  compel  report  of  referee. 

136.  (Sec.  5213.)     .Judgment  on  the  report  finding  facts  and  law,  wherk 

no  motion  for  a  new  trial  has  been  made. 

137.  Motion  to  set  aside  report  finding  facts  and  law  overruled,  and  judg- 

ment entered. 

138.  (Sec.  5213.)     Judgment  on  report  finding  facts  only,  when  no  motion 

for  a  new  trial  has  been  filed. 

139.  (Sec.  5213.)     Motion  to  set  aside  report  finding  facts  only,  overruled 

and  judgment  entered. 

140.  (Sec.  5305.)     Report  set  aside,  and  a  new  trial  granted. 

141.  (Sec.  5305.)     Same,  before  another  referee. 

Instead  of  submitting  a  case  to  a  jury  or  the  court,  the  code  provides 
for  a  third  method  of  deciding  the  issues  of  fact  and  law,  and  this  is 

^  As  to  what  will  be  regarded  as  a  statement  of  the  court's  conclusion  of  law, 
see  Levi  v.  Daniels,  22  Ohio  St.  38. 

2  No  authority  is  contained  in  section  372  of  the  code  (Ohio  Code,  5207)  for 
the  submission  of  actions;  it  relates  solely  to  the  submission  of  questions  of  dif- 
erence  without  action.     Van  Sickle  v.  Van  Sickle.  8  How.  (N.  Y.),  265. 


X 


-5210.]  TRIAL    I5Y    REFEREES.  G5 

by  referees.  The  referees  are  substituted  for  tlic  court  and  jury,  uimI 
their  proviuce  is  to  decide  the  faet.s  of  the  case,  if  the  facts  ouly  are 
•suhniitted,  or  botli  the  facts  and  hiw  of  the  case,  if  both  are  referred. 
Th(!  trial  bcf)re  tlie  referees  is  eonductf(l  in  tli'i  .«a!uo  manner  as  a  trial 
i)V  the  court  on  submission.  The  evidence  is  not  to  be  reduced  to  writ- 
ini,'  unless  specially  ordered.  All  su(;h  exceptions  as  could  l)e  made  in 
tlu!  j)rogress  of  a  trial  before  the  court  may  be  taken  by  either  party 
in  a  trial  before  referees.  When  the  reference  is  to  report  facts  only, 
tlu;  report  has  the  effect  of  a  si)ecial  verdict;  if  the  reference  is  of  the 
facts  and  law,  the  facts  and  the  conclusions  of  law  are  stated  separately, 
and  the  report  stands  as  the  decision  of  the  court,  and  judjrment  may 
be  entered  thereon  as  if  the  action  had  been  tried  by  the  court.  The 
decision  of  the  referee,  however,  may  be  reviewed  by  the  court. 

These  provisions  show  very  clearly  that,  while  the  trial  before  referees 
is  subject  to  the  review  and  revision  of  the  court  ordering  the  refer- 
ence, it  is  a  substitute  for  a  trial  in  court.  The  finding  of  the  facts  is, 
in  effect,  the  special  verdict  of  a  jury.  The  conclusions  of  law  of  the 
referees  stand  as  the  law  decisicm  of  the  court,  and,  if  not  set  aside,  a 
judgment  follows  of  course.'  The  report  of  the  referee  u|)on  the  whole 
issue  requires  no  confirmation,  inasmuch  as  it  stands  as  the  decision  of 
the  court,  by  direct  provision  of  the  statute.*  So,  also,  when  the  ref- 
erence is  to  report  the  facts,  no  confirmation  would  seem  necessary,  the 
report  having,  by  force  of  the  statute,  the  effect  of  a  sjiecial  verdict.'^ 

Review  of  referee's  decision — 

Section  5213  provides  that  referees  "  mu.st  state  the  facts  found,  and 
the  conclusions  of  law,  separately,  and  their  decision  must  be  given, 
and  may  be  excepted  to  and  reviewed  in  like  manner  "  as  the  decision 
of  the  court  when  the  report  is  upon  the  whole  issue,  and  as  a  special 
verdict  when  the  report  is  only  upon  the  facts. 

The  meaning  of  this  section  seems  to  be,  not  that  the  referee's  court 
is  to  be  regarded  as  distinct  from  the  common  pleas,  so  as  to  require 
parties  to  go  from  that  to  the  common  pleas  by  error  or  appeal,  as  from 
one  court  to  a  higher,  but  rather  to  make  the  referee  an  officer  of  the 
common  pleas  court,  so  that  his  finding  is  the  finding  of  the  court. 
During  the  progress  of  the  trial  before  the  referee  he  is  the  substitute 
for  the  judge  ;  the  trial  is  conducted,  and  exceptions  taken  to  his  rul- 
ings upon  the  trial  and  allowed  in  the  same  manner  as  before  the  judge 

^Lawson  v.  Bissell,  7  Ohio  St.  132;  Cincinnati  v.  Cameron,  33  Ohio.  St.  336. 
*Sec.  5213. 


66  JOURNAL   ENTRIES,  [SEC.  5210- 

upon  submission/  The  bill  of  exceptions,  showing  enough  of  the  tes- 
timony to  explain  the  exceptions,  made  up  as  in  other  cases,  signed 
by  the  referee,  will  be  returned  by  him  with  his  report  to  the  court, ^ 
to  be  brought  before  the  court  by  a  motion  for  a  new  trial  under  sec- 
tion 5305,  sub.  8. 

If,  when  the  referee  makes  his  finding,  either  party  wishes  a  review 
upon  the  finding  of  fact  or  law,  he  need  not  except  to  the  finding,''  but 
must  file  with  the  court,  after  the  report  is  filed,  a  motion,  under  sec- 
tion 5305,  sub.  6,  for  a  new  trial,  on  the  ground  that  the  report  is  not 
sustained  by  sufficient  evidence,  or  is  contrary  to  law,  or  both,  accord- 
ing to  what  he  objects  to,  including  any  other  causes  he  may  desire. 
This  is  probably  all  that  is  required  to  bring  the  case  before  the  com- 
mon pleas  for  review  of  the  finding  of  law,  when  the  party  is  satisfied 
with  the  finding  of  facts.  But  if  his  ground  for  a  new  trial  is  that 
the  report  is  not  sustained  by  sufficient  evidence,  in  a  case  where  the 
testimony  has  not  been  reduced  to  writing  by  the  referee,  the  Jjarty 
must  also  file  with  the  referee,  before  he  makes  his  report,  a  motion 
for  a  new  trial  on  the  ground  that  the  finding  is  against  the  evidence,* 
and,  upon  the  motion  being  overruled  by  the  referee,  he  can  except  to 
the  decision,^  and  embody  his  exception,  with  enough  of  the  testimony 
to  explain  it,  in  a  bill  of  exceptions,  which  will  be  signed  by  the 
referee  and  also  returned  with  his  report  to  the  court.  This  appears  to 
be  the  only  way  of  bringing  the  testimony  before  the  court  for  review 
in  such  a  case.  If,  however,  the  testimony  has  been  reduced  to  writ- 
ing by  the  referee,  under  sec.  5213,  it  is  probably  sufficient  for  the 
jmrty  to  file  his  motion  in  the  court  alone,  as  above  set  forth.  If,  in 
either  of  the  above  cases,  the  court  overrules  the  motion  for  a  new 
trial,  and  judgment  is  entered  on  the  report,  the  party  may  except  and 
have  his  proceedings  in  error  to  the  district  court  as  in  other  cases;  or, 
if  a  proper  case,  may  appeal  from  the  judgment  by  virtue  of  sections 
5226-5239.  An  appeal  vacates  the  report  of  the  referees,  and  the  case 
stands  for  trial  in  the  district  court  as  if  no  reference  had  been  made 
below.  "^ 

^See  Cincinnati  v.  Cameron,  33  Ohio  St.  356. 
"  Sec.  5216.     See  also  Lawson  v.  Bissell,  7  Ohio  St.  129,  132. 
3  See  Kline  v.  Wynne  et  al.,  10  Ohio  St.  223,  226. 

*Sec.  5301  in  connection  with  sec.  5213.     See  also  Westfall  v.  Dugan,  14  Ohin 
St.  276,  and  Kandall  v.  Turner,  17  Ohio  St.  262. 
6  By  sec.  530L 
«  Lawson  v.  Bissell,  7  Ohio  St.  130. 


-5212.]  TRIAL    BY    REFEREES.  67 

132.  (Sec.  5210.)     Order  of  reference,  for  trial. 
[Title.] 

Now  come   tlie  parties  hereto,  and,  by  their  consent  [or, 

say,  On  motion  of  the ,  and  good  cause  being  shown],  it 

is  ordered  that  this  cause  be,  and  it  hereby  is,  referred  to  E. 
]'\,  for  trial  of  tlie  issues  both  of  law  and  fact  [or  either,  as 
Ihe  court  may  direct]  arising  therein.  And  the  said  referee  is 
(tnlered  to  report  his  findings  and  decision  to  this  court  with- 
out unnecessary  delay. 

[And  it  is  further  ordered  that  the  referee  reduce  the  tes- 
timony of  the  witnesses  to  writing,  and  require  them  sever- 
ally to  subscribe  the'  same.] ' 

133.  (Sec.  5210.)     Order  of  reference  to  ascertain  and   rejjort 

facts. 

[Tit/c] 

Now  come  the   parties  hereto,  and,  by  their  consent   [or, 

say.  On  motion  of  the ,  and  for  good  cause  shown],  it  is 

ordered  that  this  cause  be  and  it  hereby  is  referred  to  .T.  M. 
F.,  who  is  directed  to  ascertain  and  find  the  facts,  and  re- 
port ^  them  to  this  court. 

[It  is  further  ordered  that  said  referee  reduce  the  testimony 
of  the  witnesses  to  writing,  and  require  them  severally  to 
subscribe  the  same.]  ^ 

134.  (Sec.  5212.)     Substituting  referee  by  judge  of  court  in  va- 

cation. 

[Title.] 

This  cause  having  been  heretofore  referred  by  the  

court  of  this  county  to  E.  F.,  as  referee,  and  the  said  referee 
being  unable  to  serve  by  reason  of  sickness,  now  upon  the 
written  consent  of  the  parties  hereto  [or,  upon  the  applica- 
tion of  the herein,  and  reasonable  notice  thereof  to  the 

ilf  it  is  desired  that  the  referee  reduce  his  testimony  to  -writing,  it  must  be 
so  ordered  in  the  order  of  reference.  See  sec.  5213.  When  so  reduced  to  writ- 
ing, signed  by  the  witnesses,  and  reported  to  the  court,  it  may  be  used  as  a 
deposition,  by  sec.  5267. 

*This  report  will  have  the  effect  of  a  special  verdict.     Sec.  5213. 


68  JOURNAL   ENTRIES.  [SEC.  5213- 

said ],  I  do  hereby  order  and  direct  tliat  this  case  be  re- 
ferred to  G.  H.,  as  referee,  to  the  same  extent  and  upon  the 
same  issues  as  in  the  former  reference. 

And  it  is  ordered  that  the  said  G.  H.  report  to  the  said 
court  without  unnecessary  dehiy. 

135.  Order  to  coinpeP  report  of  referee. 
[TiUe.]    ^ 

On  motion  of  C.  B.,  attorney  for  the  ,  it  is  ordered 

that  E.  F.,  the  referee  appointed  in  this  action,  report  herein 
within  ten  days  after  service  of  a  copy  of  this  order,  or 
show  cause  why  an  attachment  shoukl  not  issue  against 
him. 

136.  (Sec.  5213.)     Judgment  on  the  report  finding  fads  and  laWy. 

when  no  motion  for  a  new  trial  has  been 
made. 

[Title.] 

And  now  this  cause  coming  on  for  hearing  on  the  report 
of  the  referee,  heretofore  filed  herein,  and  on  motion  of  the 
plaintiff'  for  judgment  thereon,  and  no  motion  for  a  new 
trial  having  been  filed*  ;  it  is  considered  that  the  plaintiff" 

recover  from  the  defendant  the  sum  of  $ ,  by  said  report 

found  to  be  due,  together  with  his  costs  herein  expended,  in- 
cluding the  sum  of dollars,  which  the  court  allows  to 

T.  R.,  the  referee,  for  his  services  herein,  taxed  at  ^ . 

137.  Motion  to  set  aside  report  finding  facts  and  law  overruled,. 

and  judgment  on  the  re/port. 

[Title  r\ 

And  now  this  cause  coming  on  for  hearing  on  the  report 
of  the  referee,  and  on  the  motion  to  set  aside  the  same  and 
for  a  new  trial,"  the  court  on  consideration  overrule  said 
motion.* 

It  is  therefore  considered,  etc.,  [as  in  last  decree]. 

^If  he  neglect  to  report,  he  may  be  compelled  to,  by  attachment.     Stafford 
V.  Heskith,  1  Wend.  71. 
*  By  section  .5305. 


—5218.]  TRIAL    BY    REFEREES.  69 

138.  (Sec.  5213.)  Judgment  on  report  finding  the  facts  only, 
when  no  motion  for  a  new  trial  has  been 
filed. 

[Title.'] 

And  now  tliis  cause  coming  on  for  hearing  on  the  report 
of  the  referee  of  his  finding  of  facts,  and  no  motion  for  a 
new  trial  having  been  filed,  the  court  finds  that  the  law  aris- 
ing upon  said  facts  is  with  the  phiintifi^,  and  that  there  is  due 
him  from  the  defendant  the  sura  of doHars. 

It  is  therefore  considered  that  the  plaintifi:'  recover  from 

the  defendant  the  said  sum  of  $ ,  together  with  his  costs 

herein   expended,  including   the   sum  of  $ ,  which  the 

court  allows  to  T.  K.,  the  referee,  for  his  services  herein, 
taxed  at  $ . 

130.  (Sec.  5213.)  Motion  to  set  aside  report  finding  facts  only 
overruled,  and  judgment  entered. 

ITitle.-] 

And  now  this  cause  coming  on  for  hearing  on  the  report 
of  the  referee,  of  his  finding  of  facts,  and  the  motion  to  set 
aside  the  same,  the  court,  on  consideration,  overrules  said 
motion,  and  finds  that  the  law  arising  upon  said  facts  is  with 
tlu'  plaintiflJ",  and  that  there  is  due  him  from  the  defendant 
the  sum  of doHars. 

It  is  therefore  considered,  etc.  \_as  in  last  decree.'] 

140.  (Sec.  5305.)     Beport  set  aside,  and  a  new  trial  granted. 
[Title.] 

And  now  this  cause  coming  on  for  hearing  on  the  report 
of  E.  F.,  referee  herein,  and  on  the  motion  to  set  aside  the 
same,  and  for  a  new  trial,  the  court,  on  consideration,  grants 
the  said  motion,  and  said  findings  and  report  are  hereby  va- 
cated, *  and  a  new  trial  is  awarded  before  the  said  referee. 

141.  (Sec.  5305.)     Same,  before  another  referee. 
[Title.] 

As  in  list  to  *,  and  continue:] — And  the  court  do  hereby 
discharge  and  remove  the  said  E.  F.  from  any  further  hear- 
ing or  reporting  in  the  said  action  as  referee,  and  do  now, 
on  motion  of  the  said  ,  hereby  appoint  G.  H.  referee  in 


70  JOURNAL    ENTRIES.  [SEC.  52111— 

this  action,  iu  lieu  and  stead  of  the  said  E.  F.,  with  the  same 
powers  and  instructions  as  heretofore  given  to  the  said  E.  F. 
by  the  former  ordei^o^iroference.  And  the  said  referee  now 
here  appointed  is  di\^ted  to  report  herein  without  unneces- 
sary delay.       ^^   v 

SUBDIYrKIO]^  V. — Trial  by  mastkk  commissioners. 

142.  (Sec.  5i|^0.)     Order  appointing  regular  master  ccmmissioner. 

143.  (Sec.  Sifc"^^     Order  of  refei'ence  to  take  testimony  and  report  con- 

^^        elusions,  etc. 

144.  (SAe,  521^2.)  Order  referring  to  special  master. 

145.  (SWl  5222.)  Confirmation  of  report,  and  judgment. 

146.  (Sec.^^22.)  Same,  another  form. 

147.  (Sec.  5222.)  Exceptions   to   report   in   part   sustained,    and   report 

modified. 

148.  (Sec.  5222.)     Exceptions  sustained,  and  report  set  aside. 

Reference,  as  before  the  code — 

149.  Order  referring  case  to  a  master,  to  take  an  account. 

150.  Order  to  ascertain  a  fact. 

151.  Confirmation  of  report. 

Master  commissioners  are  either  regular  or  special. 

The  appointment  of  the  special  master  is  made  in  the  order  of  refer- 
ence, and  the  object  of  his  appointment  there  specified. 

Under  section  5222,  any  action  in  which  neither  party  is  entitled  to  de- 
mand a  trial  by  a  jury,  may  be  referred  to  a  regular  or  special  master  com- 
missioner, for  the  trial  of  the  issues  arising  upon  the  pleadings.^  This 
section  only  applies  to  cases  where  the  master  finds  the  facts  involved 
in  the  issues,  and  does  not  profess  to  regulate  the  practice  where  the 
chancellor  calls  upon  a  master  to  state  an  account,  or  determine  some 
other  fact  auxiliary  to  the  final  determination  of  the  cause  by  the  court.* 

The  report  may  be  excepted  to  by  the  parties,  and  be  confirmed,, 
modified,  or  set  aside  by  the  court. ^ 

In  case  of  judgment  on  the  report,  and  appeal  taken  from  the  Com- 
mon Pleas  to  the  District  Court,  the  cause  stands  for  trial  in  the  appellate 
court  upon  the  same  issues  as  in  the  court  below,  and  the  parties  are 
entitled  to  introduce  any  competent  testimony,  without  regard  to  the 
question  whether  it  was  or  might  have  been  introduced  before  the 
master. '^ 

1  Bell  V.  Crawford,  25  Ohio  St.  402,  411,  construing  section  611  of  the  old  codei 
which  was  the  same  as  section  5222,  Rev.  Stat. 

2  lb.  412.  3  Sec.  5222. 


-5222.]  TRIAL   BY    MASTER   COMMISSIONERS.  71 

142.  (Sec.  5219.)     Order  appointing  regular  master  commissioner. 

Ill  the  matter  of  the  1 

appointment  of  A.  B.,  master  commissioner,  j 

On  application  of  A.  B.,  he  is  hereby  appointed  a  master 
commissioner  of  this  court  for  the  term  of  three  years. 

And  the  court  direct  that  the  undertaking  of  the  said  A. 
B.  as  sucli  master  commissioner,  as  required  by  law,  be  given 
in  the  sum  of ^  dollars. 

And  now  comes  the  said  A.  B.,  and  is  duly  sworn,  and 
gives  liis  undertaking  aforesaid,  with  R.  S.  and  L.  E.  as 
sureties,  to  the  approval  of  the  court. 

143.  (Sec.  5222.)     Order  of  reference  to  master  commissioner  to 

take  testimony  in  ivriting,  and  report  with 
his  conclusions  on  the  law  and  facts. 

[Tiilt.'] 

On  motion  of  the  plaintiff  [or,  defendant],  and  good  cause 
being  shown  therefor,  it  is  ordered  that  this  cause  be,  and  it 
hereby  is,  referred  to  F.  G.,  one  of  the  master  commissioners 
of  this  court,  to  take  the  testimony  offered  by  the  parties  in 
writing,  and  report  the  same  to  the  court,  with  his  conclu- 
sions on  the  law  and  facts  involved  in  the  issues,  without 
unnecessary  delay. 

[It  is  further  ordered  that  the  said  master  require  the  wit- 
nesses severally  to  subscribe  their  testimony  herein.]- 

144.  (Sec.  5222.)     Order  referring  to  special  master.^ 
[Title:] 

On  motion  to  the  court  by  the herein,  and  for  good 

cause  shown,  it  is  ordered  that  this  cause  be,  and  the  same 
hereby  is,  referred  to  S.  M.,  who  is  hereby  appointed  a  special 
master  commissioner  for  that  purpose,  who  shall  forthwith, 
upon  being  duly  qualified,  proceed  to  [set  out  the  duty  given 
him.] 

1  The  amount  of  the  undertaking  is,  in  Hamilton  county,  fixed  by  custom  at 
fifteen  thousand  dollars. 

^Optional  with  the  court,  by  section  5223.  When  so  taken  and  reported  to 
the  court,  such  testimony  may  be  used  as  a  deposition,  by  section  5267. 

^For  appointment  in  case  of  sale  of  specific  real  property,  see  Sale  of  mort- 
gaged PREMISES,  p.  106,  and  the  decrees  thereunder. 


72  JOURNAL   ENTRIES.  [SEC.  5222- 

[And  it  is  ordered  that,  before  entering  upon  his  duties, 
said  S.  M.  shall  enter  into  an  undertaking,  to  the  approval 
of  the  court  and  conditioned  according  to  law,  in  the  sum 
of  $ .J 

And  thereupon  came  the  said  S.  M,,  and  was  duly  sworn 
as  such  special  master,  and  presented  his  bond,  with  S.  T. 
and  C.  E.  as  sureties,  to  the  approval  of  the  court. 

145.  (Sec.  5222.)     Confirmation  of  report,  and  judgment. 

[Title.'] 

This  cause  coming  on  for  hearing  on  the  report  of  the  mas- 
ter commissioner  [or,  special  master  commissioner],  to  whom 
the  same  was  heretofore  referred  [and  the  exceptions  thereto], 
on  consideration  thereof  by  the  court,  [the  exceptions  are 
overruled,  and]  the  report  and  all  the  matters  and  findings 
therein  are  hereby  approved  *  and  confirmed. 

And  the  court,  upon  the  said  report  and  testimony,  find,- 
etc. 

It  is  therefore  considered  by  the  court  that  the  said ■ 

recover  from  the  said the  said  sum  of dollars,  to- 
gether with  his  costs  herein  expended,  including  the  sum  of 
I ,  which  the  court  allow  to  the  said  master  for  his  serv- 
ices herein,  taxed  at  $ . 


146.  (Sec.  5222.)     Same — another  form. 
[Title. -] 

As  in  last  to  *,  and,  continue:] — and  confirmed;  and  it  is  or- 
dered that  the  findings  of  the  said  master  stand  as  the  find- 
ings of  the  court. 

It  is  therefore  considered,  etc.  [as  in  last.] 

147.  (Sec.  5222.)     Exceptions  to  report  in  part  sustained,  and 

report  modified. 
[Title.] 
This  cause  now  coming  on  to  be  heard  upon  the  report  of 

1  The  special  master  need  not  give  bond,  unless  so  ordered  by  the  court  ap- 
pointing him. 

^The  finding  may  be  simply  of  the  amount  due,  or  any  other  special  finding. 
Or  it  may  be,  "  that  the  facts  are  as  found  by  the  report  of  the  master." 


—5222.]  TRIAL    BY    MASTER    COMMISSIONERS.  73 

the  master  commissioner,  to  whom  said  cause  was  heretofore 
referred,  and  the  exceptions  to  the  report,  the  court,  upon 
consideration  thereof,  sustain  the  exceptions  in  part,  to  wit, 
tlie  chiuses  numbered  3  and  4,  and  overrule  the  balance; 
and  the  report  of  the  referee  is  accordingly  modified  in  this, 
to  wit  [j^peeify'],  and  with  this  modification  the  said  report  is 
confirmed.  And  the  court,  upon  said  report  and  testimony, 
find,^  etc.  It  is  therefore  considered,  etc.  [fondude  withjadg- 
ment,  as  in  No.  145.] 

148.  (Sec.  5222.)  Exceptions  to  report  sustained  and  report  set 
aside. 

[Title:] 

This  cause  now  coming  on  to  be  heard  upon  the  report  of 
the  master  commissioner,  to  whom  said  cause  was  heretofore 
referred,  and  the  exceptions  to  the  report,  the  court,  upon 
consideration,  find  the  exceptions  well  made,  and  sustain  the 
same.  The  said  report  is  therefore  set  aside  and  held  for 
naught. 

Reference  as  before  the  code — 

Besides  the  cases  above  of  reference  for  trial  of  the  issues,  or  for  as- 
eertaiuing  aud  reporting  the  facts,  there  are  a  number  of  sections  of 
the  code  authorizing  a  reference  for  other  purposes — as,  for  instance, 
section  5477  in  proceedings  in  aid  of  execution,  and  section  5559  for  a 
reference  to  determine  amounts  aud  priorities  of  several  attachments. 
In  all  of  these  latter  cases,  the  references  should  probably  be  governed 
by  the  rules  governing  references  before  the  code.  And  so  also  in  cases 
Avhcre  the  code  does  not  specially  provide  for  a  reference,  an  order  of 
reference  may  be  made  to  a  regular  or  special  master,  as  allowed  before 
the  code,  in  accordance  "with  the  usages  of  courts  of  equity  for  the  pur- 
pose of  taking  an  account,  or  ascertaining  some  other  matter  ancillary 
to  the  determination  of  the  cause  by  the  court.  And  the  referee  may 
be  instructed  to  report  the  testimony  with  his  findings  to  the  court. ^ 
The  report  of  the  referee  in  all  of  the  above  cases  should  always  be 
confirmed,  where  it  is  required  for  the  purpose  of  enabling  the  court  to 
make  some  discretionary  order  or  decree,  before  it  is  adopted  as  the 
foundation  of  an  order  or  decree.* 

^  May  be  simply  of  amount  due,  or  may  be  any  otber  special  finding  shown 
by  the  report. 

^  See  Bell  v.  Crawford,  2')  Ohio  St.  410-4in. 
s  Daniels'  Chancery  PI.  and  Pr.  1308. 


74  JOURNAL    ENTRIES.  [SEC.  5222- 

Exceptions  may  be  filed  to  the  report,  aud  if  overruled,  the  report 
confirmed,  and  judgment  entered  by  the  court,  and  an  appeal  be  taken, 
the  report  is  not  vacated  by  the  appeal,  but  is  brought  up  to  the  appel- 
late court  for  confirmation,  modification,  or  vacation,  as  it  stood  in  the 
court  below,  and  neither  party  can  introduce  additional  testimony,  un- 
less upon  some  equitable  showing/ 

149.  Order  referring  case  to  a  master  to  take  an  account. 
[Title.'] 

On  motion  of  the ,  and  for  good  cause  shown,  it  is  or- 
dered that  this  cause  be,  and  the  same  hereby  is,  referred  to 
F.  G.,  one  of  the  master  commissioners  of  this  court,  with 
all  the  powers  of  a  master  in  chancery,*  to  take  an  account, 
and  ascertain  and  report  to  this  court  the  amount  due,  etc. 
\_specify?^  And  the  said  master  is  ordered  to  report  [the  tes- 
timony,- with]  his  findings,  to  the  court,  without  unnecessary- 
delay. 

150.  to  ascertain  a  fact. 

{Title.'] 

As  in  last  to^,  and  continue:] — to  ascertain  and  report  to 
this  court  [specfy  the  fact  to  be  determined.]  And  the  said 
master  is  ordered  to  report  [the  testimony,- with]  his  findings, 
to  the  court,  without  unnecessary  delay. 

151.  Confirraation  of  report. 
[Title.] 

This  cause  now  coming  on  for  hearing  on  the  report  of  the 
referee  \or,  master  commissioner;  or,  special  master  commis- 
sioner], to  whom  the  same  was  heretofore  referred  [and  the 
exceptions  thereto],  on  consideration  thereof  by  the  court 
[the  exceptions  are  overruled,  and]  the  report  and  all  the 
matters  and  findings  therein  are  hereby  approved  and  con- 
firmed as  the  finding  of  the  court. 

Judgment  may  or  may  not  accompany  the  confirmation  of  the  mas- 
ter's report,  according  to  the  nature  of  the  facts  reported.    If  they  are  of 

iSee  Bell  v.  Crawford,  25  Ohio  St.  410,  411,  413. 
2  Optional  with  the  court. 


-5227.]  TRIAL    ON   APPEAL.  75 

8uch  a  nature  as  to  entitle  the  party  to  a  judgment,  without  further 
finding  of  facts,  the  court  will  render  its  judgment  when  it  confirms 
the  report.  In  that  ca.se  the  entry  may  l>e  the  same  as  No.  145  or  146. 
Entries  of  exceptions  sustained  and  report  modified  or  set  aside,  may 
also  Ixi  made  by  slightly  modifying  Entries  Nos.  147  and  148. 


75a  JOURNAL  ENTRIES.  [SEC.  5225- 


SUBDIVISION  VI.— Trial  on  appeal. 
Appeal  FROii  the  common  pleas  to  the  circuit  court — Entries  in  the 

COMMON  pleas — 

151a.  (Sec.  5226.)  Notice  of  appeal  from  order  dissolving  injunction,  etc. 

152.  (Sec.  5227.)  Notice  of  appeal. 

153.  (Sec.  5229.)  Notice  of  appeal  by  administrator  or  executor. 
151.  (Sec.  5230.)  Order  fixinej  penalty  of  appeal  bond,  etc. 

155    (Sec.  5232.)     Notice  of  appeal  by  one  of  several  parties. 

Entries  in  the  circuit  court — 

155a.  (Sec.  52"J6.)     Suspending  execution  of  order  dissolving  injunction, 

156.  (Sec.  5233.)     Order  for  new  undertaking. 

157.  (Sec.  5233.)     Appeal  dismissed  for  want  of  new  undertaking. 
157a.  (Sec.  5235.)     Suspending  execution  of  judgment  for  injunction. 

158.  (Sec.  5237.)     Judgment  for  plaintiflFwho  fails  to  recover  more,  etc. 

159.  (Sec.  5238.)     Penalty  allowed  when  there  was  no  reasonable  ground 

for  appeal — in  case  of  money  judgment. 
159a.  (Sec.  5238.)     Same — in  case  of  judgment  other  than  for  money. 

160.  (Sec.  5238.)     Penalty  when  appeal  is  for  delay — money  judgment. 
]60a.  (Sec.  5238.)     Same — in  case  of  judgment  other  than  for  money. 

161.  (Sec.  5238.)     No  penalty  allowed. 

162.  (Sec.  5239.)     Entry  remanding  to  common  pleas  court. 

163.  (Sec.  5239.)     Same — in  decree  for  sale. 

-Appeal  from  a  justice  to  the  court  of  commox  pleas. 
Ist.    Ill  case  of  appellant! s  failure  to  file  transcript. 

164.  (Sec.  6588.)     Case  docketed,  etc.,  and  judgment  in  common  pleas. 

165.  (Sec.  6588.)     Case  docketed,  etc.,  and  appeal  dismissed. 

2rf.   In  case  of  plaintiff^  s  failure  to  file  petition  after  transcript  filed. 

166.  Dismissal  for  want  of  petition. 

167.  (Sec.  6589.)     Judgment. for  defendant. 

3(/.   In  other  cases. 

168.  (Sec.  6594  )  .  Judgment  quashing  an  appeal. 

169.  Appeal  dismissed  for  want  of  jurisdiction. 

170.  (Sec.  6595.)     Order  for  new  undertaking. 

-Appeal  fiiom  probate  court  to  the  court  of  common  pleas. 

.\ppeal  from  county  commissioners  to  the  court  of  common  pleas. 
170a.  (Sec.  896.)     Judgment  on  appeal. 


-5226.]  trial  on  appeal.  70 

Appeal  from  the  common  pleas  to  the  circuit  court;  entries 
IN  the  common  pleas — 

The  notice  of  appeal  may  be  entered  on  tlie  journal  as  a  separate 
entry,  or  may  be  added  to  the  judt^inent  or  oi"<ler  appealed  from. 
The  omission  to  enter  on  tiie  journal  noliee  ut  appeal  within  the 
term,  can  not  be  cured  by  a  ytunc  pro  tunc  entry  at  a  subHequent 
term.' 

If  an  appeal  in  taken  from  an  interlocutory  order  made  by  the 
Common  Pleas  Court  dissolving  an  injunction  in  a  case  of  which  it 
had  original  jurisdiction,  us  by  sec.  5j!26,  82  O.  L.  32,  it  may  be 
the  Common  Pleas  Court  may  suspend  the  operation  of  the  order 
for  any  period  not  exceeding  ten  da3's.  But  the  appeal  and  appeal 
bond  will  not  further  suspend  the  execution  of  the  order  except  by 
order  of  the  Circuit  Court,  or  two  judges  thereof  in  vacation. 

151a.  (Sec.  5226,  82  O.  L.  32.)  Notice  of  appeal  from  order  dis- 
solvint;  injunction,  and  ortler  suspended. 

Add  to  entry  No.  350,  page  191 :] 

And  the giving  notice  of  an  a[>i)eal  to  the  Circuit 

Court,  and  good  cause  being  shown,  the  operation  of  this  or- 
der is  suspended  for days. 

152.  (Sec.  5227.)     Notice  of  appeal. 
[TUle.] 

Now  comes  the ,  and  gives  notice  of  his  iutentioa  tO' 

appeal  this  cause  to  the  Circuit  Court. 

The  court  may  add  by  virtue  of  sec.  5231 :] 

And  the  court  directs  that  the  appeal  bond  be  made  paya- 
ble  to  [the  adverse  party,  or  otherwise,  in  its  discretion.] 

Also  by  sees.  5226,  82  O.  L.  32,  and  5234 :]    And  on  motioa 

of  the execution  is  stayed  for days.     [Add  terms,  if 

any.] 

153.  (Sec.  5229.)     Notice  of  appeal  by  administrator  or  executor^ 
[7Vf/-.] 

Now  comes  R.  S.,  administrator  of  the herein,  who 

has  died  since  giving  notice  of  appeal,  and  gives  notice  of 

1  Moore  v.  Brown,  10  Ohio,  197. 


76a  JOURNAL  ENTRIES.  [5230- 

bis  intention  as  such  administrator  to  appea.  this  cause  to  the 
Circuit  Court;  and  the  said  R.  S.  having  as  such  administra- 
tor given  bond  in  this  state  according  to  law,  no  appeal  bond 
is  required.^ 

154.  (Sec.  5230.)     Order  fixing  penalty  of  appeal  bond  in  case 

of  judgment  other  than  personal  for  money . 

Add  to  t lie  judgment  entry  ;] 

And  the  court  lix  tlie  penalty  of  the  bond  to  be  given  in 
case  of  appeal  at dollars. 

155.  (Sec.  5232.)     Notice  of  appeal  by  one  of  several  parties. 
[  litle.'] 

And  now  comes  the  said  E.  F.,  one  of  the  above ,  and 

gives  notice  of  his  intention  to  appeal  so  much  of  this  cause 
as  affects  him  to  the  Circuit  Court;  and,  on  motion,  his  said 
appeal  is  allowed  on  his  giving  bond  in  the  sum  of dol- 
lars, conditioned  [Iiere  state  the  condition  as  fixed  by  the  courty 
and  any  order  as  to  papers  and  pleadings.  The  same  clauses 
may  also  be  added  as  after  entry  JS'o.  152.] 

Appeal   from   the   common   pleas — Entries   in   the   circuit 

COURT. 

Entries  amending  pl^adings,^  and  making  new  parties^  in  the 
District  Court,  will  be  the  same  as  in  the  Common  Pleas. 

155a.  (Sec.  5226,  82  0.  L.  32.)  Suspending  execution  of  order 
made  by  Common  Pleas  dissolving  injunction. 

[Title.] 

On  motion  of  the  - — —  and  argument  of  council  [or,  reason- 

ble  notice  to  the  ],  it  is  hereby  ordered  that  the  order 

made  by  the  Court  of  Common  Pleas  in  this  case  dissolving 
the  injunction  be,  and  is  herebv,  suspended  and  stayed,  by 
virtue  of  the  appeal  and  bond  given,  until  the  linal  hearing 
or  further  order  in  this  court. 

1  See  sec.  5228. 

''Sec.  5225. 

»  Babcock  v.  Camp,  12  Ohio  St.  11.  :r^ 


-5233]  TUIAL  ON  APPEAL.  77 

150.  (Sec.  5233,  82  O.  L.  32.)     Onhr  for  7ieio  undertaking. 

[Title.] 

It  appearing  to  the  court  that  the  surety  in  the  undertaking 
for  the  appeal  in  the  case  lias  removed  from  tiie  state  [or  other- 
wise become  insufficient],  it  is  liereby,  on  motion,  ordered  that 
a  new  undertaking  be  given  [or  change  or  renewal  made,  as  the 
case  may  be],  with  security  to  the  approval  of  this  court  [or, 
the  clerk  of  this  court],  within  — —  days. 


157.  (Sec.  5233.)     Appeal  dismissed  for  want  of  neio  undertak- 
ing. 
[  Tdle.] 

On  motion  to  the  court,  and  it  appearing  that  the  appellant 
has  failed  to  comjily  with  the  order  herein  for  a  new  under- 
taking on  the  apiieal  : 

It  is  therefore  considered  by  the  court  that  said  appeal  be, 
and  the  same  hereby  is,  dismissed. 


157a.  (Sec.  5235,  82  0.  L.  32.)     Suspending  execution  of  jndg. 
ment  for  an  injunction  rendered  by  Common 
Pleas  Court,  in  case  of  appeal. 
[Title.] 

On  motion  of  the and  argument  of  counsel,  it  is  hereby 

ordered  that  the  judgment  rendered  by  the  Court  of  Common 
Pleas  in  this  case  granting  an  injunction  be,  and  hereby  is, 
susjjended  and  stayed  by  virtue  of  the  appeal  and  bond  given 
until  final  hearing  or  further  order  in  this  court. 


158.  (Sec.  5237.)     Judgment  for  plaintiff"  icho  fails  to  recoreron 
his  appeal  more  than  in  the  court  below. 
[Title.] 

Use  forms  in  Common  Pleas  with  following  addition: 
And  the  plaintiff  herein  not  recovering  a  greater  sum  than 

in  the  court  below,  it  is  ordered  that  he  pay  all  the  costs  iu 

this  court. 


78  JOURNAL   ENTRIES.  [SEC.  5238- 

159.  (Sec.  5238.)     Penalty  allowed  when  there  was  no  reasonable 

ground  for  appeal,  in  case  of  money  judg- 
ment. 
[Title.'] 

Enter  judgment  in  the  usual  form.,  and  add:] 

And  this  judgment  being  substantially  the  same  as  was 

rendered  by  the  court  below,  it  is  further  adjudged  that  the 

appellant  pay  to  the  appellee  as  damages  thereon  five  per 

cent  of  the  judgment  below,  to  wit,  the  sum  of dollars. 

159«.  (Sec.  5238.)  Same,  in  ease  of  judgment  other  than  for 
money. 

ITitle.'] 

Enter  judgment  in  the  usual  form,  and  add :] 

And  this  judgment  being  substantially  the  same  as  was 
rendered  by  the  court  below,  it  is  further  adjudged  that  the 
appellant  pay  to  the  appellee  as  damages  thereon  the  sum  of 
dollars. 

160.  (Sec.  5238.)     Penalty  allowed  when  the  appeal  is  for  delay, 

in  case  of  money  judgment. 
[Title.] 

Add  to  the  usual  judgment :] 

And  this  judgment  being  substantially  the  same  as  was 
rendered  by  the  court  below,  and  the  court  further  finding 
that  this  appeal  was  for  the  purpose  of  delay  merely,  it  is 
therefore  adjudged  that  the  appellant  pay  to  the  appellee  as 
damages  thereon  ten  per  cent  of  the  judgment  below,  to  wit, 
the  sum  of dollars. 

160(2.  (Sec.  5238.)  Same,  in  case  of  judgment  other  titan  for 
money. 

[Title.] 

Add  to  the  usual  judgment :] 

And  this  judgment  being  substantially  the  same  as  was 
rendered  by  the  court  below,  and  the  court  further  finding 
that  this  appeal  was  for  the  purpose  of  delay  merely,  it  is 
therefore  adjudged  that  the  appellant  pay  to  the  appellee  aa 
damages  thereon  the  sum  of  dollars. 


-5230.]  TRIAL    ON    APPEAL.  79 

IGl.  (Sec.  5238.)     No -penalty  allowed} 

[Tille?^ 

Add  to  the  judgnicjit  :'\ — And  the  court  tiiiding  that  there 
was  reasonable  ground  for  this  ai>peal,  no  penalty  is  allowed. 

162.  (Sec.  5231).)     Entry  remandhuj  to  Common  Pleas  Court. 
[Title.] 

Add,  to  the  judgment  entry  •] — It  is  further  ordered  that  this 

case  he  remanded  to  the  said  Common  Pleas  Court  of 

county  for  execution  [or,  for  further  proceedings]. 

163.  (Sec.  5230.)     Same — in  decree  for  sale.''' 

{ntie.-] 

Enter  judgment  and  order  for  sale.,  as  in  the  Common  Fleas; 
but,  instead  of  the  order  that  the  sheriff  or  master  report  his  pro- 
ceedings to  this  court,  order  •] 

It  is  further  ordered  that  this  cause  be  remanded  to  the 

Common  Pleas  Court  of county,  to  carry  this  decree  into 

execution,  and  for  all  further  proceedings. 

Appeal  from  a  justice  of  the  peace  to  the  common  pleas 

COURT — 

For  the  time  provided  for  filing  pleadings  in  these  appeals,  see  section 
6598. 

1st.  In  case  of  appellant's  failure  to  file  transcript. 

164.  (Sec,  6588.)     Case  docketed  on  behalf  of  appellee,  and  judg- 

ment in  Common  Pleas. 
[Title.] 

This  day  came  the  defendant  [or,  plaintiff]  herein,  and  filed 
a  transcript  of  the  proceedings  and  judgment  of  H.  M.,  a 

'This  entry  is  not  absolutely  necessary,  as  no  penalty  will  be  taxed  unless 
expressly  allowed. 

•'The  order  for  sale  may  issue  out  of  the  Circuit  Court  by  sec.  5289,  as  amended, 
82  O.  L.  33,  and  all  further  proceedings  be  had  there,  in  the  same  manner  as  in 
the  Common  Pleas.  Or  the  case  may  be  remanded  and  the  order  be  issued  out 
of  the  Common  Pleas  Court,  the  judgment  and  decree  for  sale  being  a  final  or- 
der. See  Teaff  r.  Hewitt,  1  Ohio  St.  511. 
6 


80  JOURNAL    ENTRIES.  [SEC.  

justice  of  the  peace  in  and  for county,  in  a  certain  ac- 
tion between  the  above  named  parties,  from  which  it  appears 

that  on  the day  of ,  18 — ,  a  judgment  was  rendered 

by  said  justice  in  favor  of  this and  against  this ,  for 

the  sum  of  $ ,  and  $ ,  costs  of  suit ;  from  which  judg- 
ment the  said ,  appealed. 

And  it  appearing  to  the  court  that  the  appellant  has  failed 
to  deliver  a  transcript  of  the  proceedings  and  judgment  afore- 
said to  the  clerk  of  this  court,  and  cause  his  appeal  to  be 
docketed  within  the  time  required  by  law,  and  the  said  C.  D. 
now  here  electing  to  have  judgment  entered  in  this  court : 

It  is  therefore  considered  by  the  court  that  the  said  C.  D. 

recover  from  the  said  A.  B.  the  said  sum  of dollars,  the 

judgment,  and dollars  costs  of  suit  as  aforesaid,  with  in- 
terest from  [same  date  as  beloiv'\,  together  with  his  costs  herein 

in  this  court  expended,  taxed  at  $ ;  and  execution  is 

awarded  therefor. 

165.  (Sec.  6588.)  Case  docketed  for  appellee,  and  appeal  dis- 
missed. 

ITitle.'] 

This  day  came  the  defendant  [or,  plaintiff]  herein,  and  filed 
a  transcript  of  the  proceedings  and  judgment  of  II.  M.,  a  jus- 
tice of  the  peace  in  and  for county,  in  a  certain  action 

between  the  above  named  parties,  from  which  judgment  the 
said  plaintiff  [or,  defendant]  appealed.  And  it  appearing  to 
the  court  that  the  appellant  has  failed  to  deliver  a  transcript 
of  the  proceedings  and  judgment  aforesaid  to  the  clerk  of 
this  court,  and  to  cause  his  appeal  to  be  docketed  within  the 
time  required  by  law  : 

It  is  therefore,  on  motion,  ordered  that  the  said  appeal  be 
docketed  on  behalf  of  the  appellee,  and  dismissed  at  the  cost 
of  the  appellant;  and  that  said  cause  be  remanded  to  H.  M., 
said  justice,  to  be  proceeded  in  as  though  no  appeal  had  been 
taken. 

2.  In  case  of  plainiiff's  failure  to  file  petition  «ifter  transcript  filed. 

If  the  judgment  before  the  justice  was  for  the  plaintiff,  and,  after 
appeal  and  ti'anscript  filed  by  the  defendant,  the  plaintiff  fails  to  file 
his  petition,  t'.ie  case  may  be  dismissed  at  plaintiff's  cost. 


.]  TRIAL    ON    APPEAL.  81 

If  the  judgment  before  the  justice  was  for  the  defendant,  and  the 
plaintiff  appeals  and  fails  to  file  his  petition,  or  otherwise  fails  to  pros- 
ecute his  appeal,  judgment  maybe  entered  fur  the  defendant  for  the 
amount  of  the  judgment  rendered  against  the  plaintiff  by  the  justice, 
together  with  interest  and  costs.*  If  the  judgment  for  defendant  was 
for  his  costs  only,  a  dismissal  of  the  case  at  plaintiff's  cost,  as  above,  is 
usually  entered. 

1G6.     Dismissal,  for  irant  of  petition. 

[Title.] 

This  case  is  dismissed  for  want  of  petition,  at  plaintiff's 
cost,  and  execution  is  awarded. 

167.  (Sec.  6589.)     Judgment  for  defendant, 
[rule.'] 

This  day  came  tlie  defendant,  and  the  plaintiff  being  in 
default  for  petition  [or,  hacing  otherwise  neglected,  to  prosecute 
his  action  to  final  judgment :] 

It  is  therefore  considered  that  the  defendant,  C.  D.,  recover 
from  the  plaintiff',  A.  B.,  the  sum  of dollars,  the  judg- 
ment, with  interest  rendered  by  said  justice,  together  with 
his  costs  herein  expended ;  and  execution  is  awarded. 

Zd.  Li  other  cases. 

If  the  appeal  is  quashed  for  want  of  jurisdiction  in  the  court  appealed 
from,  no  judgment  for  costs  can  be  rendered. - 

If  a  case,  on  appeal,  is  dismissed  for  want  of  jurisdiction  of  the  court 
of  appeal,  no  judgment  for  costs  can  be  rendered.^ 

168.  (Sec.  6594.)  Judgment  quashing  an  appeal. 
[Title.] 

I^ow  came  the  parties  herein,  and  it  appearing  to  the  court 
that  [the  cause  must  here  be  set  forth],  on  motion  of  the  said 

,  and  due  consideration  had,  it  is  ordered  and  adjudged 

that  the  said  appeal  be  quashed,  vacated,  and  held  for  void, 

'  Sec.  6589. 

^  Paine  v.  Comm'rs,  Wright,  417. 

3  Norton  v.  McLeary,  8  Ohio  St.  210. 


82  JOURNAL    ENTRIES.  [SEC. 

at  the  cost^  of  the ,  taxed  at  $ ;  aud  execution  is> 

awarded  therefor. 

169.  Appeal  dismissed  for  ivant  of  jurisdiction. 
[7itle.] 

On  motion  of  the ,  and  it  appearing  that  this  court  has 

no  jurisdiction  herein,  the  petition  is  hereby  stricken  from 
the  docket. 

170.  (Sec.  6595.)     Order  for  new  underto.kiiig. 
[Title.'] 

It  appearing  to  the  court  that  the  surety  in  the  undertake 
ing  for  the  appeal  in  this  case  is  insufficient  [or,  that  the  un- 
dertaking in  this  case  is  insufficient  in  form  in  this  {state  how), 
or  in  ainount],  it  is  hereby,  on  motion,  ordered  that  a  new- 
undertaking  be  given  [or  change  or  renewal  made,  as  the  case 
may  be],  with  good  security,  and  that  this  entry  be  certified 
to  H.  M.,  the  justice  of  the  peace  from  whose  judgment  this 
appeal  was  taken. 

Appeal  from  probate  court  to  the  court  of  common  pleas — > 
In  cases  of  appeal  from  the  Probate  Court  the  order  or  judgmeut 
will  be  made  as  though  the  Common  Pleas  had  original  jurisdiction,'^ 
except  that  the  formal  part  of  the  entry  will  be  different.  For  form,, 
see  Entry  No.  779. 

Appeal  from  county  commissioners  to  the  court  of  common: 

PLEAS 

Appeals  from  the  county  commissioners  allowed  by  sec.  896,  are  only 
allowed  in  cases  founded  upon  claims  and  demands  against  the  county 
in  its  quasi  corporate  capacity.^ 

If  judgment  is  rendered  against  the  county  commissioners  for  the- 
payment  of  money,  it  may  be  in  the  following  form  : 

1  But  see  supra.  '^  See  sec.  6407. 

3  Bowersox  et  al.  v.  Watson  et  al.,  20  Ohio  St.  506;  Shepard  v.  Comm'rs  of 
Darke  Co.,  8  Ohio  St.  3.57. 


.]  MEANS    OF    SECURING    ATTENDANCE.  83 

170a.  (Sec.  896.)  Judgment  on  appeal  from  county  commission- 
ers. 

[Title.'] 

This  cause  came  on  this  day  to  be  heard  and  was  submitted 
to  the  court  on  the  .pleadings  and  evidence  ;  and  on  con- 
sideration thereof  the  court  tind  on  the  issue  joined  for  the 
plaintiff,  and  llnd  that  there  is  due  him  on  the  claim  set  up 
in  his  petition  the  sum  of dollars. 

It  is  therefore  considered   ])y  the  court  that  the  plaintiff 

recover  ui)Oii  his  said  claim  the  said  sum  of   dollars, 

together   with    his   costs    herein    expended,    and    that   the 

auditor  of county  issue  his  warrant  upon  the  treasurer 

for  payment  of  the  same.' 


CHAPTER  m. 

EVIDENCE. 

Subdivision  II.  Means  of  .skcuring  attendance. 

III.  Modes  of  taking  testimony. 

IV.  Admission  and  inspection  of  documents. 
V.  Variance. 

SUBDIVISION  II. — Means  of  securing  attendance. 
Rule — 

171.  (Sec.  5253.)     Rule  allowed. 

172.  Rule  discharged. 

173.  (Sec.  5254.)     Judgment  on  rule. 

Attachment — 

174.  (Sec.  5254.)     Order  for. 

175.  Attachment  discharged. 

17t).  (Sec.  5253.)     Judgment  on  attachment. 

Proceedings  against,  and  punishment  of,  witness — 

177.  (Sec.  5254.)     When  witness  refuses  to  be  sworn,  etc. 

178.  (Sec.  5255.)     Discharge  from  imprisonment,  etc. 

1  See  sec.  1024,  and  Comm'rs  of  Clermont  Co.  v.  Robb  et  al.,  5  Ohio,  490. 


84  JOURNAL   ENTRIES.  [SEC.  5240- 

Testimoxy  of  prisoner — 

179.  (Sec.  5257.)     Order  for  oral. 

It  is  doubtful  whether,  in  any  case,  a  party,  where  he  is  sworn  and 
testifies  as  a  witness  in  his  own  behalf,  can  recover  fees.  To  author- 
ize the  allowance,  he  should  be  required  to  show  that  he  did  not  attend 
as  a  party,  nor  attend  to  the  conduct  of  the  trial  of  the  cause  ;  and 
that  the  sole  purpose  and  intent  of  his  attendance  Avas  as  a  witness.^ 

Rule — 

171.  (Sec.  5253.)     Bule  allowed. 
[Title.'] 

On  motion  of 's  attorney,  a  rule  is  allowed  to  issue 

against  E.  F.,  commanding  liim  to  appear  forthwith  [or  at  any 
sjjecified  time'],  as  a  witness  in  this  case,  and  to  show  cause 
why  he  should  not  be  attached  for  contempt  in  disobeying 
the  subpoena  of  this  court. 

172.  Rule  discharged. 
[Title.] 

And  now  the  said  E.  F.  having  appeared,  and  having  been 
examined  touching  his  disobedience  of  the  subpoena  of  the- 
court  in  this  case,  on  consideration  thereof.*  it  is  ordered 
that  said  rule  be  discharged  at  the  cost  of  the . 

173.  (Sec.  5254;  77  O.  L.  45.)     Jadgment  on  rale. 
[Title?[ 

As  in  last  to  *,  and  continue:] — the  court  do  find  that  he 
has  been  thereby  guilty  of  a  contempt. 

It  is  therefore  ordered  that  a  fine  of  % be  imposed  upon 

the  said  E.  F.,  for  this,  his  said  contempt,  and  that  he  pay  the 
costs  of  the  proceedings  under  this  rule ;  for  both  of  which 
execution  is  awarded. 

Attachment — 

If  the  witness  has  been  served  personally  by  subpoena,  or  on  rule,, 
and  has  disobeyed  the  same,  an  order  for  attachment  may  be  had. 

1  Logan  V.  Thomas  et  al.,  11  How.  160. 


-5274.]  MEANS    OF    SECURING    ATTENDANCE.  85 

174.  (Sec.  5253.]     Order  for  attachment. 
[Title.'] 

Oil  motion  of  the  attorney  for  the ,  it  is  ordered  that 

an  attucliincnt  issue  herein,  commanding  the  sherifi'to  arrest 
and  bring  E.  F.  before  this  court  forthwith  [or  at  any  specified 
time'],  to  give  his  testimony  in  this  case,  and  to  answer  for  his 
contempt  in  disobeying  the  subpoena  [or,  rule]  of  tlie  court. 

Jf  tlic  order  is  to  appear  at  some  future  time,  the  court  may 
also  add:] — 

And  the  court  fix  the  undertaking  of  tlie  said  E.  F.  for  his 
appearance  at  % . 

175.  Attachment  discharged. 
[Title.] 

Now  came  the  said  E.  F.,  in  charge  of  the  sheriff,  upon  the 
attachment  heretofore  issued  against  him,  and  tlie  court  hav- 
ing examined  tlie  said  E.  F.  [or,  heard  tlie  evidence]  touching 
his  alleged  contempt,  do,  on  consideration  *  thereof,  order 
that  said  attachment  be  discharged  at  the  cost  of . 

170.  (Sec.  5254 ;  77  O.  L.  45.)     Judgment  on  attachment. 

[Title.] 

As  in  last  to  *,  and  continue:] — find  that  the  said  E.  F.  is 
guilty  of  the  same. 

It  is  therefore  ordered  that  a  fine  of  $ be  imposed  upon 

the  said  E.  F.  for  this,  his  said  contempt,  and  that  he  pay  the 
costs  of  these  proceedings,  for  both  of  which  execution  is 
awarded. 

PrOCEEDINGIS    AGAn>ST,    AND    PUNISHMENT    OF,  WITNESS 

177.  (Sec.  5254;  77  0.  L.  45.)  When  loitness  refuses  to  he 
sworn,  etc. 

[Title.] 

And  now  E.  F.,  a  witness  in  this  action,  having  been  called 
upon  therefor,  and  having  refused,  as  such  witness,  to  be 
sworn  [or,  to  answer  the  following  question  propounded  to 


86  JOURNAL   ENTRIES.  [SEC.  5255- 

him,  to  wit  {state  questiov}),  or,  to  subscribe  his  deposition 
taken  herein]  ;  and  having  been  personally  examined  touch- 
ing his  said  refusal,  on  consideration  thereof,  the  court  do 
find  that  he  is  thereby  guilty  of  a  contempt  of  court. 

It  is  therefore  ordered  f  that  a  fine  of  $ be  imposed 

upon  the  said  E.  F.  for  this,  his  said  contempt,  and  that  he 
pay  the  cost  of  this  proceeding  ;  for  both  of  which  execution 
is  awarded. 

Or,  t  that  the  said  E.  F.  be  imprisoned  in  the  jail  of  this 
county,  there  to  remain  until  he  shall  submit  so  to  be  sworn 
[or,  testify,  or,  subscribe  said  deposition];  or  l)o  otherwise 
duly  discharged. 

178.  (Sec.  5255.)    Discharge  from,  imprisonment  in  certain  case. 
[Title.] 

In  this  cause  the  application  of  E.  F.,  by  his  attorney,  for 
discharge  from  imprisonment  being  heard  before  me,  I  do 
find  that  the  imprisonment  of  the  said  E.  F.,  made  by  order 
of ,  before  whom  his  deposition  was  being  taken,  is  il- 
legal, and  therefore  order  that  the  said  E.  F.  be  forthwith 
discharged  from  said  imprisonment. 

Testimony  of  prisoner — 

179.  (Sec.  5257.)     Order  for  oral  testimony.  '        , 
[litle.'] 

On  motion  of  the ,  and  it  being  necessary  to  have  the 

oral  testimony  in  this  case  of  one  E.  F.,  now  confined  in  the 

jail  of county,  it  is  hereby  ordered  that  the  sheriff  of 

said  county  produce  said  prisoner  for  such  oral  examination 

before  this  court,  on  the day  of ,  18 — ,  at  the  hour 

of o'clock,  -  M. 


SUBDIVISION  III. — Modes  of  taking  testimony. 

180.  (Sec.  5272.)     Commission  to  take  depositions. 

181.  (Sec.  5286.)     Exceptions  sustained. 

182.  (Sec.  5286.)     Exceptions  overruled. 

^So  that  it  may  be  stated  in  the  order  of  commitment,  as  required  by  section 
6256. 


-5287.]       ADMISSION    AND    INSPECTION    OF    DOCUMENTS.  87 

180.  (Sec.  5272.)      Commission  to  take  depositions. 
[Title] 

On  motion  of  the herein,  it  is  ordered  that  a  commis- 
sion he  granted  to  issue  to  G.  II.,  of  tlie  county  of ,  and 

State  of  ,  authorizing   and  requiring  him  to  take  the 

deposition  of  [give  name  and  residence],  upon  the  written  in- 
terrogatories herein  filed,  and  to  return  the  same  to  this  court 
without  unnecessary  dehiy.  And  it  is  ordered  that  proper 
notice  of  the  time  and  place  thereof  be  given  to  the  respect- 
ive parties. 

181.  (Sec.  528G.)     Exceptions  sustained. 
[Title.] 

This  cause  being  this  day  heard  upon  the  exceptions  of  the 

to  the  deposition  of ,  taken  in  the  case,  the  court, 

on  consideration  of  the  premises,  find  *  said  exceptions  well 
taken,  and  do  sustain  the  same  by  reason  of  the  defects 
therein  mentioned.  It  is  therefore,  on  motion,  ordered  by 
the  court  that  the  said  deposition  be  stricken  from  the  files 
of  this  case. 


182.  (Sec.  5286.)     Exceptions  overruled. 

[Title.] 

As  in  last  to^,  and  continue:] — that  the  said  exceptions  are 
not  well  taken,  and  thev  are  therefore  overruled. 


SUBDIVISION  IV. — Admission'  axd  ixspkction  of  documents. 

183.  (Sec.  5289.)  Order  to  produce  writing. 

184.  (Sec.  5289.)  Order  to  produce  books,  etc. 

185.  (Sec.  5289.)  Order  to  produce,  upon  trial. 

186.  (Sec.  5290.)  Order  for  examination  out  of  court. 

187.  (Sec.  5291.)  Order  for  private  examination. 

188.  (Sec.  5293.)  Order  for  discovery. 

Sees.  5289,  et  seq.,  evidently  authorize  the  court  to  make  an  order 
for  the  production  of  books,  etc.,  either  before  or  on  the  day  of  trial, 
as  the  order  may  be  made  in  cases  and  under  circumstances  where  it 


88  JOURNAL    ENTRIES.  [SEC.  5280- 

niight   heretofore  be  made  by  a  court   of  cliancery/  and   courts   of 
chancery  formerly  exercised  such  power.^ 

The  books,  to  be  produced,  were  formerly  left  with  an  officer  of  the 
court,'-  unless,  for  the  convenience  of  the  party  producing  them,  some 
other  place  was  designated  ;  and  the  same  should  be  done  under  the 
code. 

183.  (Sec.  5289.)     Order  to  produce  ivriting. 
[Title.-] 

On  motion  of  the  plaintiff,  and  due  notice  given,  and  it 
appearing  that  the  defendant  has  in  his  possession  a  certain 
account  between  himself  and  said  plaintiff,  which  is  of  im- 
portance to  plaintiff  as  evidence  in  this  case,  it  is  hereby  or- 
dered that  he  produce  the  same,  etc.  [Conclude  as  in  any  of 
the  following  entries  concerning  the  production  of  books,  accord- 
ing to  circumstances.'] 

184.  (Sec.  5289.)      Order  to  produce  books,  etc. 
[Title.] 

On  motion  of  the ,  and  due  notice  being  given,  it  is 

hereby  ordered  that  the  said do,  within days  from 

the  service  of  this  order,  produce  and  leave  with  the  clerk  of 
this   court   certain  books  in  his   possession,  to  wit  [specify 

particulnrhf]  :  with  liberty  to  the  said and  his  attorney  to 

examine  the  same,  and  take  copies  and  abstracts  thereof. 

185.  (Sec.  5289.)     Order  to  produce  upon  trial. 
[Title.] 

On  motion  of  the  plaintiff,  and  due  notice  being  given,  it 
is  hereby  ordered  that  the  said  defendant  do,  upon  the  trial 
of  this  case,  produce  certain  books  in  his  possession,  to  wit : 
[specify  particularly],  in  open  court,  for  examination  and  use 
at  said  trial. 

186.  (Sec.  5290.)     Order  for  examination  out  of  court. 
[Titler\ 

On  motion  of  the  plaintiff,  and  due  notice  given,  it  is 
hereb}^  ordered  that  the  said  plaintiff  and  his  attorney  be  al- 

1  See  Baggott  v.  Goodwin,  17  Ohio  St.  81. 

2  2  Daniels'  Cli.  V\.  and  Pr.  1389. 


-5298.]  VARIANCE.  89 

lowed,  at  all  reasonable  times,  to  examine,  at  the  office  of  the 
said  defendant,  certain  books  in  his  possession,  to  wit  [specify]  • 
with  liberty  to  take  cojjies  and  abstracts  thereof. 

187.  (Sec.  5201.)      Onlcr  for  private  examination. 

Tlu! liei'oin  having-  doniandod  the  production  [or.,  in- 
spection, or,  copy]  of  certain   books   [o'',  papers,  writings,  or 

documents],  and  the alleging  that  the  same  are  of  such 

a  character  that  they  ought  not  to  be  produced  [or.,  that  an  in- 
spection, or.,  copy,  ought  not  to  be  allowed],  it  is  therefore,  on 

motion  of  the  said  ,  ordered  and  directed  that  a  private 

examinntion  thereof  1)C  made  by  G.  II.,  a  master  commis- 
sioner of  this  court,  and  that  ho  roi)ort  to  this  court,  accord- 
ing to  statute,  without  unnecessary  delay. 

188.  (Sec.  5203.)     Decree  for  discovery. 
[Title.] 

Now  came  the  plaintiff,  by  his  attorney,  and  thereupon 
this  cause  came  on  to  be  heard  upon  the  petition  for  dis- 
covery, and  the  interrogatories  contained  therein.  And  the 
defendant  not  demurring  thereto,^  the  court  find  that  the 
plaintitf  is  entitled  to  the  discovery  prayed  for  in  his  peti- 
tion. 

It  is  therefore  ordered  and  adjudged  that  the  defendant  be, 

and   he  hereby  is,  required,  within days,  to  make  and 

file  full  and  direct  answers  in  writing,  under  oath,  to  the  in- 
terrogatories in  said  petition  set  forth. 

Wheu  the  answer  is  made  and  filed,  the  case  may  then  be  finally 
disposed  of,  costs  to  be  paid  as  the  court  may  direct. 


SUBDIVISION  v.— Variance. 

189.  (Sec.  5294.)     Amendment  allowed  in  case  of  material  variance. 

190.  (Sec.  5295.)     Amendment  allowed  in  case  of  immaterial  A'ariance. 

Sections  169  and  170  (5294  and  5295,  Ohio  Code)   contemplate  a 

1  Or,  if  the  demurrer  is  heard  and  uverruled,  enter  the  overruling  in  the  usual 
form,  and  continue  as  in  the  bidanoe  of  this  ehtrv. 


90  JOURNAL    ENTRIES.  [SEC.  5294- 

case  where  the  alleged  variance  has  been  discovered  or  is  developed  on 
the  trial  or  hearing,  at  which  time  the  relief,  in  a  case  to  which  it  is 
appropriate,  may  at  once  be  given,  and  the  trial  thereafter  proceed 
upon  the  amended  pleadings.^ 

If  the  objection  is  not  made  at  the  trial,  it  is  too  late  on  error  to 
make  it.^ 

189.  (Sec.  5294.)     Amendment  allowed  in  case  of  material  vari- 

ance. 

[Title.'] 

This  cause  coming  on  this  day  for  trial,  and  it  being  found 
that  there  is  a  variance  between  the  pleading  of  the  plaintiff 
and  the  proof  adduced,  and  that  the  defendant  has  been  mis- 
led thereby  to  his  prejudice  in  making  his  defense,  the  court 
iind  said  variance  to  be  material ;  and  the  cause  is  continued 
at  the  cost,  for  the  present  term,  of  the  plaintiff.  And,  on 
motion,  the  plaintiff'  has  leave  to  amend  his  petition  within 
days. 

Or,  such  other  terms  may  be  imposed  as  are  just  and  proper.  Or, 
by  consent  of  parties,  the  trial  may  proceed  upon  the  amended  plead- 
ings, if  filed  instanter. 

190.  (Sec.  5295.)     Amendment   allowed   in  case  of  immaterial 

variance. 

[Titled, 

This  cause  coming  on  this  day  for  trial,  and  there  appear- 
ing to  be  a  variance  between  the  pleading  of  the  plaintiff* 
and  the  proof  adduced,  but  it  appearing  that  the  defendant 
has  not  been  misled  thereby  to  his  prejudice  in  making  his 
defense,  the  court  find  said  variance  not  to  be  material,  and 
thereupon  the  trial  proceeds,  and  the  plaintiff  is  allowed  to 
amend  his  petition  at  once  to  conform  the  same  to  the  facts 
found  Ijy  the  evidence.  And  said  amendment  is  now  accord- 
ingly filed. 

1  Egbert  v.  Wicker,  10  How.  197. 
*  Dayton  v.  Kelly,  24  Ohio  St.  345. 


-5302.]  EXCEPTIONS.  91 


CHAPTER  IV. 

EXCEPTIONS. 

191.  (Sec.  5300.)     Exception,  etc.,  noted. 

192.  (Sec.  5.'}0'2.)     Order  allowing  bill  of  exceptions. 

193.  (Sec.  5304.)     Exception  withdrawn. 

No  exception  need  be  taken  to  a  final  judgment.' 

A  nunc  pro  tunc  order,  made  at  a  .'subsequent  term,  to  the  effect  that 
a  paper  not  identified  by  the  bill  shall  be  considered  as  a  part  of  it,  is 
a  nullity.'^ 

Where  a  bill  of  exceptions  stated  that  a  certain  paper,  wliich  was 
still  found  in  the  file  of  the  case,  and  as  to  the  identity  of  which  there 
could  be  no  doubt,  was  attached  as  part  of  the  bill  of  exceptions,  and 
marked  with  tlie  letter  A,  but,  in  fact,  it  was  not  done,  the  court  or- 
dered the  bill  of  exceptions  to  be  amended  l)y  attaching  the  paper.' 

A  bill  of  exceptions  must  be  made  a  })art  of  the  record,  or  it  can 
not  be  considered  by  the  court  of  error.-^.* 

In  case  of  a  motion  for  a  new  trial,  after  judgment,  being  overruled, 
exce})tion  taken  and  a  bill  of  exceptions  allowed,  filed,  etc.,  it  is  some-! 
times  entered  up  in  one  entry.  But  it  is  better  practice  to  make  .sep- 
arate entries;  one  overruling  the  motion  and  noting  exception,  and 
another  allowing  the  bill. 

191.  (Sec.  5300.)     JExcfption   voted  to  decision   entered  on  the 

record. 

[Title.] 

Add  to  the  journal  entry  :] — And  to  the  said  order  [or,  find- 
ing] of  the  court  the  phiintitf  [or,  defendant],  by  his  counsel, 
excepts. 

192.  (Sec.  5302  ;  87  v.  206.)     Order  allowing  hill  of  exceptions. 
[Title?[ 

Now  comes  the ,  and  presents  to  the  court  his  certain 

bill  of  exceptions  herein,  which,  being  found  by  the  court  to 

^  Commercial  Bank  v.  Eiickingliam,  V2  Ohio  St.  402. 
2  Busby  V.  Finn,  1  Ohio  St.  409. 
'Hasehvood  v.  Parker,  3  L.  G.  49. 
*  Baldwin  v  The  State,  6  Ohio,  15. 


92  JOURNAL    ENTRIES.    •  [SEC.  5304- 

be  true,  is  allowed,,  signed,  and  sealed,  and,  on  motion,  is 
hereby  made  part  of  the  record  of  this  case. 

193.  (Sec.  5304.)     Exceptions  withdrawn. 

Kow  comes  the  ,  and,  by  leave  of  court,  withdraws 

from  the  files  his  exceptions  heretofore  taken  herein. 


CHAPTER  V. 

NEW  TRIAL. 

On  motion  made  within  the  term — 

194.  (Sec.  5305.)     Motion  granted  after  verdict. 

195.  (Sec.  5305.)     Motion  granted  after  report  of  referee. 
195a.  (Sec.  5305.)     Motion  granted  after  decision  by  the  courr. 
]95b.  (Sec.  5305.)     Motion  for  new  trial,  overruled. 

On  petition  after  the  term — 

196.  (Sec.  5309.)     Judgmentfor  anew  trial — where  final  judgment  has  not 

been  entered. 
196a.  (Sec.  5309.)     Judgment  adverse  to  new  trial. 

In  cases  tried  by  jury  or  referee,  the  motion  for  a  new  trial,  except 
for  reason  of  newly-discovered  evidence,  is  made  before  j  udgment  is  en- 
tered on  the  verdict  or  report,  three  days  being  allowed  for  that  pur- 
pose. So  in  cases  where  the  court  makes  its  finding  on  a  day  before  en- 
tering judgment  the  motion  will  be  filed  before  judgment.  In  any  of 
these  cases,  upon  motion  being  filed,  the  entry  of  judgment  is  withheld 
until  the  motion  is  decided.  But  in  a  case  tried  by  the  court,  if  the 
finding  and  judgment  are  entered  at  the  same  time,  as  is  usually  the 
case,  the  motion  and  entry  will  be  to  set  aside  the  judgment  aud  for 
a  new  trial.  The  fact  that  judgment  has  been  entered  will  not  pre- 
clude a  new  trial  being  allowed  under  section  5305. 

On  motion  made  within  the  term — 

194.  (Sec.  5305.)     Motion  granted  after  verdict. 

{T^tle^^ 

This  cause  being  heard  on  the  motion  for  a  new  trial,  the 


-5309.]  NEW    TRIAL.  93 

court,  on  consideration  thereof,  i^runt  the  same;  and  the  ver- 
dict is  hereby  vacated  and  a  new  trial  ij-ranted. 

195.  (Sec.  5305.)     Motion  f/ ranted  after  rqjort  of  referee. 
[  Title.] 

See  Entries  JSos.  140  and  141. 

195«.  (Sec.  5305.)     Motion  granted  after  decision  fjy  the  court. 

[  Title.] 

This  cause  being  heard  on  the  motion  [to  set  aside  the 
judgment  and]  for  a  new  trial,  the  court,  on  consideration 
thereof,  grant  the  same;  and  the  [judgment  and]  finding  of 
the  court  [are]  is  accordingly  set  aside,  and  a  new  trial  is 
granted. 

For  entry  of  niotiou  overruled  aud  judgment  on  verdict,  see  No.  252. 
For  motion  overruled  and  judgment  on  report  of  referee,  Nos.  137  and 
139.  For  motion  overruled  and  judgment  after  decision  by  the  court, 
No.  1976. 

1956.   (Sec.  5305.     Motion  for  new  trial  overruled. 

[Title] 

This  cause  being  heard  on  the  motion  [to  set  aside  the 
judgment]  and  for  a  new  trial,  the  court,  on  consideration, 
overrule  the  same. 

On  petition  after  the  term — 

The  following  entry  is  for  a  case  Avhere  judgment  has  not  been  en- 
tered by  the  court  on  the  verdict,  report  of  referee,  or  its  own  decision. 
If  such  judgment  has  been  entered,  use  Entry  No.  270,  post. 

196.  (Sec.  5309.)     Judgment  for  a  new  trial  in  a  case  where  final 

judgment  has  not  been  entered. 

[Title.] 

This  cause  now  coming  on  for  hearing  upon  the  ^^etition 

for  a  new  trial  in  case  numbered of  this  court  and  the 

evidence,  the  court  find  that  the  grounds  for  a  new  trial  set 
up  in  said  petition  are  such  as  could  not  with  reasonable  dili- 
gence have  been  discovered  at  the  term  when  the  verdict  [or, 


94  JOURNAL    ENTRIES  [sEC.  5300- 

report ;  or,  decision]  in  said  case  was  given  [or,  made],  and 
that,  by  reason  of  the  facts  so  set  np,  the  plaintiiF  is  entitled 
to  a  new  trial  of  said  cause. 

It  is  therefore  adjudged  that  the  verdict  [or,  report  of  the 
referee ;  or,  decision  of  the  court]  in  the  case  above  named, 
wherein  the  said  A.  B.  is  plaintiff  and  C.  D.  is  defendant, 
lie,  and  it  hereby  is,  vacated,  and  a  new  trial  of  said  cause 
is  granted. 

It  is  further  considered  that  the  costs  in  this  case  abide  the 

result  of  said  case  Ko. [or  other  order  as  the  court  may 

viake']. 

196a.  (Sec.  5309.)     Judgment  adverse  to  a  new  trial. 

[TUle.'] 

This  cause  now  coming  on  for  hearing  upon  the  petition 

for  a  new  trial   in   case  No. of  this  court,  wherein  the 

said  A.  B.  is  plaintiff  and  C.  D.  defendant,  the  court  finds 
upon  the  evidence  adduced  that  the  plaintiff  herein  is  not 
entitled  to  the  new  trial  petitioned  for,  and  therefore  refuses- 
the  same.  And  it  is  adjudged  that  the  defendant  recover 
from  the  plaintiff"  his  costs  herein  expended. 


DIVISIOiT  IV.— Judgment. 

Chapter  I.  Judgment  ix  gexeiial. 

II.    JUDGMEXT    UPdX    FAILURE    TO    AXSWER. 

III.  JuDGMEXT    BY    CDXEESSIOX. 

IV.  Manner  of  giving  and  exterixg  judgment. 
V.  Jddgment  for  costs  and  its  enforcement. 

VI.  New  trial  and  other  relief  after  judgment. 
VII.  Revivor  of,  axd  new  parties  to  judgment. 


-5300.]  JUDGMENT  IN  GENERAL.  05 

CHAPTER  I. 

JUDGMENT  I.\  GENERAL. 

JlTDOMIONT    O.V    FINDING    PUKVIOISLV    MADK    HY    THE    COLRT FoRMS 

I'.'T.  Judf^ment  on  findini^  when  no  motion  for  new  trial  has  been  made. 

lUTiv.   Same — for  defenchiiit. 

J 97b.   Motion  for  new  trial  overruled,  and  judgment  on  finding. 

Forms  ok  .iud^.mknt — 

Finding      I.     On  submission  of  issue  triable  only  by  the  court. 

Finding    II.     On  submission  to  the  court,  jury  waived. 

Finding  III.     General  finding  by  the  court  on  issue  joined. 

Finding  IV.     For  judgment  taken  on  defendant's  default. 
198.  (Sec.  5311.)     For  jilaintifT,  in  action  for  money  only. 
I'.t9.  (Sec.  S.'ill.)     For  one  of  several  plaintiffs. 
1200.  (Sec.  5.511.)     For  plaintiff  against  one  of  several  defendants. 
201.  (Sec.  5.'{11.)     For  plaintiff  atrainst  one  defendant  and  for  another. 
1202.  (Sec.  .')311.)     For  plaintiff  by  default  against  one  defendant,  and  on 
submission  against  another. 

203.  For  plaintiff,  for  amount  admitted  by  answer — balance  waived. 

204.  Same — case  continued  as  to  balance. 

205.  For  plaintiff  for  balance,  after  admitting  counterclaim. 

206.  (Sec.  531 1.)     For  defendant,  for  costs. 

207.  (Sec.  5311.)     For  one  of  several  defendants. 

208.  (Sec.  5311.)     For  defendant  against  one  of  several  plaintiffs. 

209.  For  defendant,  on  petition  and  counterclaim. 

210.  (Sec.  5315.)     For  defendant  on  counterclaim  or  set-off,  after  petition 

dismissed. 
210a.  (Sec.  5329.)     For  defendant  for  balance  due  on  counterclaim,  etc. 

Judgment  of  dismissal — 

211.  For  want  of  jurisdiction. 

212.  (Sec.  5313.)     For  neglect  in  serving  other  defendants. 

213.  (Sec.  5314,  1.)     Dismissal  without  prejudice — by  plaintiff. 

214.  (Sec.  5314,  2.)     Dismissal  for  want  of  prosecution. 

215.  (Sec.  5314,  3.)     Dismissal  for  want  of  necessary  parties. 

Sale  of  mortgaged  PROPtRTT — 

Preface    I.     For  a  decree  for  sale  of  mortgaged  premises  after  trial 

on  pleadings. 
Preface  II.     For  a  decree  for  sale  of  mortgaged  premises  on  defend- 
_  ant's  default. 

7 


96  JOURNAL   ENTRIES.  [SEC.  5310- 

Decrees  for  sale — 

216.  (Sec.  5316.)     Amount  found  due   to  plaintiff  [with    personal  judg- 

ment], and  decree  for  sale — no  cross-petitioner. 

217.  (Sec.  5316.)     Amount   found   due   to   plaintiff   and    cross-petitioner 

[with  personal   judgment],   and   decree   for  sale — 
when  all  the  notes  are  secured  by  one  mortgage. 

218.  (Sec.  5316.)     Same — when  notes  are  secured  by  several  mortgages. 

219.  (Sec.  5316.)     Decree   finding  part  of    several   notes   due  [personal 

judgment],  and  decree  for  sale. 

220.  (Sec.  5316.)     Decree  foreclosing  mortgage  given  to  indemnify,  etc., 

and  ordering  sale. 

221.  Decree   finding  a  deed  and  lease  back  a  mortgage,  and  for  fore- 

closure. 

222.  (Sec.  5316.)     Order  to  subdivide. 

223.  (Sec.  5317.)     When  property  situated   in  more  than  one  county — 

order  that  sheriffs  of  respective  counties  sell. 

224.  (Sec.  5317.)     One  officer  directed  to  sell  the  whole. 


Confirmation  and  distribution — 

225.  Decree  of  confirmation,  order  for  deed  and  distribution. 

226.  Personal  judgment  for  balance  remaining  due. 

227.  Execution  awarded  for  balance  remaining  due. 

228.  Confirmation  and  distribution,  in  case  of  part  of  several  notes. 

Building  association  decrees — 

229.  Decree  for  sale. 

230.  Confirmation  and  distribution. 

A  judgment  is  the  final  determination  of  the  rights  of  the  parties  in 
an  action.' 

A  decree  is  defined  to  be  the  judgment  or  sentence  of  a  court  of 
equity,  either  interlocutory  or  final ;  and  as  the  code  abolishes  the  dis- 
tinction between  law  and  equity  proceedings,  the  term  "decree"  is 
scarcely  recognized.     The  form  is  preserved  without  the  name.^ 

The  distinguishing  characteristic  of  a  judgment  is  its  finality.  Noth- 
ing more  must  remain  that  requires  the  action  of  the  court,  except  to 
carry  into  effect  the  rights  of  parties  fixed  by  the  judgment.' 

The  judgment  may  be  analyzed  into  three  parts— the  formal  preface, 

iCode,  sec.  5310. 

»See  The  State  v.  McArthur,  5  Kan.  280. 

'Kelly  V.  Stanberry.  13  Ohio,  421. 


-5310.]  JUDGMENT   IX    GENERAL.  97 

the  finding,  and  the  adjudication  or  mandatory  part.  In  every  case 
each  should  be  distinctly  formed,  either  in  the  same  or  in  separate  entries. 

The  formal  preface  should  made  a  clear  statement  of  the  pleadings 
and  evidence  upon  which  the  case  has  been  submitted.  In  ordinary 
judgments  a  general  statement  is  sufficient.  A  more  particular  state- 
ment is  often  advisable,  as  in  decrees  for  sale  of  real  estate,  etc.,  and 
where  there  are  numerous  parties,  and  various  interests  represented  by 
different  parties,  set  it  out  in  separate  answers  and  cross-petitions.  In 
such  cases,  it  is  customary  to  enumerate  the  various  pleadings  upon 
which  the  case  has  been  considered. 

The  finding  has  already  been  considered  in  a  previous  chapter. 

The  language  of  the  judgment  is,  "  It  is  considered,"  Condderatum 
est  per  curiam,  implying  that  the  judgment  is  rather  the  sentence  of 
the  law  pronounced  by  the  court  than  the  decision  of  tlie  court.'  It 
must  follow  the  pleadings,  and  respond  to  all  issues.' 

In  entering  judgment,  interest  is  calculated  in  some  courts  to  the 
first  day  of  the  judgment  term,  and  in  others  up  to  the  first  day  judg- 
ment is  entered,  except  that  in  judgment  by  confession,  and  in  a  suit 
brought  within  the  judgment  term,  it  is  always  calculated  to  the  day 
of  the  judgment.^  The  judgment  bears  interest  at  the  same  rate  as 
the  note  without  any  rests,  whether  there  were  rests  in  the  note  or 
not.*  The  plaintiff  is  also  entitled  to  add  the  cost  of  protest  of  notes 
executed  out  of,  but  not  of  those  executed  within,  the  state.  The 
judgment  will  also  be  for  costs,  and  the  costs  being  in  blank  will 
not  make  it  irregular.^ 

Any  agreements  between  parties  as  to  operation  of  the  judgment, 
other  than  what  the  law  would  impose,  should  be  carefully  incorporated 
in  the  judgment,  as  by  consent  or  order  of  court. 

If  one  or  more  of  several  defendants  shall  have  been  served,  but  not 
all  of  them,  the  entry  giving  judgment  against  the  party  served  should 
also  dispose  of  the  parties  not  served,  so  that  there  may  be  no  doubt 
as  to  their  standing  in  the  case.  If  they  are  not  wanted  further,  the 
action  should  be  dismissed  as  to  them  ;  if  otherwise,  it  should  be  con- 
tinued for  further  service. 

There  is  no  necessity,  ordinarily,  for  adding  an  award  of  execution 
to  a  judgment.     See  Execution. 

^  Bouvior's  Law  Dictionary. 

'  Williams  c.  Directors,  etc.,  W.  518. 

s  Kimbal  v.  Connally,  Scioto  District  Court,  1859,  1  W.  L.  M.  402. 

*  Marietta  Iron  Works  v.  Lottimer,  25  Ohio  St.  621. 

*  Linton  v.  Housh,  4  Kan.  535. 


98  journal  entries.  [sec.  5310— 

Judgment  on  finding  previously  made  by  the  court  ;  forms.. 
As  heretofore  stated,  it  is  customary  to  enter  finding  and  judgment 
at  the  same  time  in  cases  Avhere  the  trial  is  had  before  tlie  court.  If, 
however,  a  party  desires  to  enter  finding  only,  forms  will  be  found  be- 
ginning with  Entry  No.  129.  When  such  finding  has  been  entered, 
judgment  may  be  entered  up  on  the  finding  as  on  a  verdict  of  u  jury. 
If  no  motion  for  a  new  trial  is  made,  or  if  made  and  overruled,  judg- 
ment will  be  entered  on  the  findings. 

197.  Judgment  on  finding,  lohen  no  inotlon  for  a  neio  trial  has 
been  made. 

iTitle:\ 

This  court  having  heretofore   found  that  the in  this 

case  was  indebted  to  the in  the  sum  of dollars,  and 

no  motion  for  a  new  trial  having  been  made ; 

It  is  therefore  considered  that  the  said recover  from 

the  said the  said  sum  of dollars  and  his  costs  herein 

expended. 

l^la.  Same,  for  defendant. 

[Title.] 

The  court  having  heretofore  found  in  this  case  for  the  de- 
fendant, and  no  motion  for  a  new  trial  being  made ; 

It  is  therefore  considered  by  the  court  that  the  said  defend- 
ant go  hence  without  day  and  recover  from  the  plaintiff  his. 
costs  herein  expended. 

1976.  Motio7i  for  a  new  trial  overruled  and  judgment  on  finding., 

[Title:] 

This  cause  now  coming  on  for  hearing  on  the  motion  of 
the  for  a  new  trial,  the  court,  on  consideration,  over- 
rules the  same. 

fit  is  therefore  considered  by  the  court  that  the  said 

recover  from  the  said the  said  sum  of dollars,  as 

heretofore  found  due  him,  together  with  his  costs  herein  ex- 
pended. 

Or,  if  for  defendant:] 

fit  is  therefore  considered  by  the  court,  that  the  said  de- 
fendant go  hence  without  day  and  recover  from  the  said 
plaintiff  his  costs  herein  expended. 


-5310.]  judgment  in  general.  90 

Forms  of  judgment — 

When  the  findiug  and  judgment  of  the  court  are  made  and  entered 
at  the  same  time,  the  preface  or  formal  part  in  the  several  kinds  of 
judgment  are  very  similar,  and  need  not  l)e  repeated  in  all  the  f  )rms 
given  here.  The  findings  are  given  as  formuhe  to  be  jirefixed  to  the 
several  judgments  according  to  circumstances.  Finding  Xo.  I  is  fjr 
a  judgment  on  submission  to  the  court  in  a  case  ■where  the  issue 
could  not  be  tried  by  a  jury.  Finding  No.  II  for  a  judgment  on  suIh 
mission  where  a  jury  has  been  waived;  and  Finding  No.  Ill  may  be 
used  in  eitlicr  case,  being  a  general  finding  which  may  be  used  by 
the  clerk  or  party  without  stopping  to  consider  wliether  the  case  was 
primarily  a  jury  case  or  not. 

PiNDiNG  I. — For  julgnient  on  submission  of  an  issue  triable  only 
by  the  court. 

ITitle.'] 

This  cause  coiniiig  on  this  day  for  hearing,  was  submitted 
to  the  court  upon  the  pleadings  [or  they  may  be  particularly 
luniieil^  and  the  evidence,  and  on  consideration  thereof,  the 
court  tind  ^  on  the  issue  joined  for  the  i>laintitt'  [or,  defend- 
ant]. 

Finding  II. — For  a  judgment  on  submission  to  the  court^ury 
waived. 

[Tdle.'\ 

This  cause  coming  on  this  day  for  hearing,  and  ajury  bein": 
waived,  was  submitted  to  the  court  upon  the  pleadings  [or 
they  may  be  particularly  uamed']  :uul  the  evidence,  and  on  con- 
sideration thereof,  the  court  tind  *  on  the  issue  joined  for  the 
plaintiff  [or,  defendant]. 

Or,  the  clerk,  without  determining  to  whicli  of  the  above  classes 
an  action  belongs,  ma^"  use  a  general  form u hi  in  entering  Judg- 
ments on  submission  to  the  court,  as  follows  : 

FiNDi.NG  III. —  General  find/ny  by  the  court  on  issue  joined. 

[  Title.] 

This  cause  coming  on  this  day  for  hearing,  was  submitted 
to  the  court  upon  the  pleadings  and  evidence,  without  the  in- 
'^■"•vention  of  a  jury  ;  on  consideration  whereof,  the  court  find 
*  on  the  issue  joined  for  the  plaintiff' [or,  defendant]. 


100  JOURNAL    ENTRIES.  [SEC.  5311— 

For  convenience  of  future  reference,  the  Finding  for  plaintiff  on- 
defendant's  default,  from  page  124,  is  also  placed  here. 

Finding  IV. — For  judgment  taken  on  defendant''  s  default. 

\^Title.'\ 

Now  comes  the  plaintiff,  by  his  attorney,  and  the  defend- 
ant being  in  default  for  answer  and  demurrer,  the  court  tiud* 
that  the  allegations  of  the  petition  are  confessed  by  him  to 
be  true. 

198.  (Sec.  5311.)     Judgment  for  j^laintiff  in  an  action  for  money 

only. 

ITitle.'] 

Find  as  in  one  of  the  above  findings,  according  to  circum- 
stances, and  continue:'] — and  find  that  the  defendant  C.  D.  is 
indebted  to  the  plaintiff  A.  B.  in  the  sum  of  $ . 

It  is  therefore  considered  by  the  court  that  the  said  plaint- 
iff recover  from  the  said  defendant  the  said  sum  of dol- 
lars, and  his  costs  ^  herein  expended,  taxed  at  8 . 

199.  (Sec.  5311.)     Judgment  for  one  of  seceral  plaintiffs. 
ITitle^^ 

Finding  page  99,  and  continue:] — A.  B.,  as  between  him', 
and  the  said  defendant,  and  that  the  defendant  C.  D.  is  in- 
debted to  the  said  A.  B.  in  the  sum  of dollars. 

It  is  therefore  considered  that  the  said  A.  B.  recover  from 
the  defendant  the  said  sum  of  S ,  and  his  costs  herein  ex- 
pended. And  as  to  the  plaintiff  R.  T.  the  court  find  that. 
he  has  no  claim  against  the  defendant,  and,  as  to  him,  the 
petition  is  dismissed. 

200.  (Sec.  5311.)     Judgment  for  jjlaintiff  against  one  of  several 

defendants. 
ITitle.] 
Find  as  on  page  99,  and  continue:] — as  against  the  de- 

1  If  the  recovery  be  less  than  one  hundred  dollars,  judgment  for  the  plaintiflF's 
costs  can  not  be  rendered,  unless  the  arnount  of  the  plaintiff's  claim  is  found  by 
the  jury  to  be  more  than  one  hundred  dollars,  and  is  reduced,  by  the  allowance 
of  a  counterclaim  or  set-off,  to  less  than  one  hundred  dollars.  Brunaugh  v.  Wor- 
ley,  6  Ohio  St.  597.     See  sec.  5349. 


-5311.]  JUDGMENT    IN    GENERAL,  101 

feiidaut,  B.  C,  impleaded  herein,  and  find  that  said  B.  C.  is 

indebted  to  the  said  plaintitt"  in  the  sum  of dollars. 

It  is  therefore  considered  that  the  plaintiff,  A.  B.,  recover 

from  tlie  said  defendant,  B.  C,  the  sfiid  sum  of  $ ,  and 

his  costs  herein  expended.  And  as  to  the  other  defendants, 
the  action  is  continued'  [or,  dismissed]. 

201.  (Sec.  5311.)     Jndr/jncnt  for  plaint  iff  a  f/ainst  one  defendant, 

and  judgment  for  another. 

[Title.] 

Find  as  on  page  99,  and  continue-]  —  as  against  the  de- 
fendant, S.  T.,  and  that  said  defendant  is  indebted  to  plaintiff 

in  the  sum  of dollars.     And  as  against  the  defendant, 

M.  N.,  the  court  find  the  plaintiff  has  no  cause  of  action  on 
the  petition  herein. 

It  is  therefore  considered  that  the  plaintiff,  A.  B.,  recover 

from  the  said  defendant,  S.  T.,  the  said  sum  of dollars, 

and  his  costs  in  this  behalf  expended;  and  that  the  said  de- 
fendant, M.  N.,  go  hence  without  day,  and  recover  from  the 
plaintiff  his  costs  herein  expended. 

202.  (Sec.  5311.)     .Tudgment  for  plaintiff  by  default  against  one 

defendant,  and  on  submission  against  an- 
other. 

[Title.] 

This  cause  came  on  for  hearing  on  the  petition,  the  answer 
of  the  defendant,  C.  D.,  and  the  evidence,  the  defendant,  E. 
F.,  being  in  default  for  answer  and  demurrer,  and  was  sub- 
mitted to  the  court  without  the  intervention  of  a  jury;  on 
consideration  whereof,  the  court  find,  on  the  issue  joined  be- 
tween the  plaintiff  and  the  defendant,  C.  D.,  for  the  said 
plaintiff",  and  find  the  allegations  of  the  petition  confessed  as 
against  the  defendant,  E.  F.;  and  that  said  defendants  are 
indebted  to  plaintiff  in  the  sum  of  ^ . 

It  is  therefore  considered  that  the  said  plaintiff  recover 
from  the  said  defendants  the  said  sum,  etc. 

'Whenever  a  several  judgment  is  proper.    Sec.  5312. 


102  JOURNAL    ENTRIES.  [SEC.  5311- 

203.  Judgment  for  ■plaintiff  for  amount  admitted  by  answer — 

balance  waived. 

{Title:] 

And  now  the  defendant  having,  by  his  answer  filed  herein, 
admitted  his  indebtedness  to  the  plaintifl:'  in  the  snni  of 

% ,  and  the  plaintiff  now  waiving  further  claim  against 

said  defendant: 

It  is  therefore,  on  motion  of  the  plaintiff,  considered  that 

he  recover  from  the  defendant,  C.  D.,  the  said  sum  of 

dollars  so  admitted  to  be  due,  together  with  his  costs  herein 
expended. 

204.  Same — and  case  continued  as  to  balance. 
[Title.] 

And  now  the  defendant  having,  by  his  answer  filed  herein, 

admitted  his  indebtedness  to  the  plaintiff  in  the  sum  of  $ , 

it  is  therefore  considered  by  the  court  that  the  plaintiff",  A.B., 
recover  from  the  defendant,  C.  D.,  the  said  sum  of dol- 
lars so  admitted  to  be  due,  together  with  his  costs  in  this  be- 
half expended.  And  as  to  the  balance  of  plaintifTs  claim, 
the  case  is  continued. 

205.  Judgment  for  plaintiff'  for  balance,  after  admitting  counter- 

claim. 
[Title:] 

And  now  the  defendant,  by  his  answer  filed  herein,  not 
having  denied  the  claim  of  the  plaintifl",  but  having  set  up  a 
counterclaim  for  an  amount  less  than  the  claim  of  the  plaint- 
iff, to  wit,  for  the  sum  of dollars,  and  the  plaintiff  ad- 
mitting said  counterclaim  in  open  court : 

It  is  therefore,  on  motion  of  the  said  A.  B.,  considered  that 

he  recover  from  the  defendant,  C.  D.,  the  sum  of dollars, 

the  excess  of  his,  the  said  plaintiff's,  claim,  together  with  his 
costs  herein  expended. 

206.  (5311.)     Judgment  for  defendant  for  costs. 
[Title.] 

Find  for  defendant,  as  in  one  of  the  Findings  on  page  99,  and 
continue :] 

It  is  therefore  considered  by  the  court  that  the  defendant. 


-5814.]  JUDGMENT  IN  GENERAL.  103 

C.  D.,  go  hence  without  day,  aiul  recover  from  the  plaintiff, 
A.  B.,  his  costs  herein  expended. 

207.  (Sec.  5311.)     Judgment  for  one  of  several  defendants. 
[Title.] 

And  now  this  cause  coming  on  to  be  heard  on  the  petition, 
the  answer  of  L.  M.  [name  any  other  pleadings]  and  the  evi- 
dence, the  court  being  fully  advised  in  tlie  premises,  find  that 
as  against  the  said  defendant,  L.  M.,  impleaded  herein,  the 
plaintiff  has  no  cause  of  action. 

It  is  therefore  considered  that  the  said  L..M.  go  hence  with- 
out day,  and  recover  from  the  jtlaintiff  his  costs  herein  ex- 
pended. 

208.  (Sec.  5311.)     Judgment  for  defendant  against  one  of  seceral 

plaintiffs. 

[Title.] 

Find  for  defendant,  as  on  page  99,  and  coiUinue:] — as  against 
the  plaintiff,  K.  S. 

It  is  therefore  considered  that  as  to  said  plaintiff,  R.  S.,  this 
petition  be  dismissed,  and  that  the  defendant  recover  from 
said  plaintiff,  E.  S.,  his  costs  in  this  behalf  expended. 

209.  Judgment  for  defendant,  on  petition  and  counterclaim. 
[Tide.] 

This  cause  coming  on  for  hearing  on  the  petition,  the  coun- 
terclaim and  the  answer  thereto,  and  the  evidence,  was  sub- 
mitted to  the  court  without  the  intervention  of  a  jury;  on 
consideration  whereof,  the  court  find  that  the  plaintiff  has  no 
cause  of  action,  as  claimed  in  his  petition,  and  that  upon  the 
counterclaim  herein  he  is  indebted  to  defendant  in  the  sum 
of dollars. 

It  is  therefore  considered  by  the  court  that  the  defendant 

recover  from  the  plaintiff"  the  said  sum  of  $ and  his  costs 

herein  expended. 


104  JOURNAL   ENTRIES.  [SEC.  5314- 

210.  (Sec.  5315.)  Judgment  for  defendant  on  counterclaim  or 
set-off,  after  'petition  dismissed. 

[Title.] 

And  now  the  plaintiff"  herein  having  dismissed  his  petition, 
this  cause  came  on  for  hearing  on  the  set-off*  [or,  counter- 
claim] of  the  said  defendant,  the  other  pleadings  and  the  ev- 
idence, and  was  submitted  to  the  court  without  the  interven- 
tion of  a  jury;  on  consideration  whereof,  the  court  finds  on 
the  issue  joined  for  the  defendant,  and  finds  that  plaintiff"  is 
indebted  to  him  in  the  sum  of  $ . 

It  is  therefore  considered  that  the  defendant  recover,  etc. 


210a.  (Sec.  5329.)  Judgment  for  defendant  for  balance  due  on 
counterclaim  or  set-off. 

[Title.'] 

Find  as;  in  one  of  the  findings  on  page  99,  according  to  cir- 
cumstances, to  *,  and  continue:] — that  there  is  due  to  the 
plaintiff' from  the  defendant  on  the  claims  in  his  petition  set 
up  the  sum  of dollars,  and  that  there  is  due  to  the  de- 
fendant from  the  plaintiff"  upon  the  cause  of  action  set  up  in 
his  counterclaim  [or,  set-ofl^"]  the  sum  of  § . 

It  is  therefore  considered  by  the  court  that  the  defendant 
recover  from  the  plaintiff"  the  balance  so  found  to  be  due 
him,  to  wit,  the  sum  of dollars,  and  his  costs  herein  ex- 
pended. 

Judgment  of  dismissal — 

Where  a  case  is  dismissed  for  want  of  jurisdiction  of  the  subject- 
matter,  the  court  can  only  strike  the  case  from  the  docket,  and  can 
render  no  judgment  for  costs. ^  In  other  cases  mentioned  in  section 
5314,  state  the  cause  of  dismissal,  and  if  costs  have  been  paid  out  by 
the  party  in  whose  favor  the  case  is  dismissed,  he  may  recover  them  by 
a  judgment  annexed  to  the  dismissal. 

An  order  dismissing  a  case  for  defect  or  irregularity  of  process,  or  in 
the  service  of  process,  and  in  no  way  founded  on,  or  passing  upon,  the 

1  Norton  v.  McLeary,  8  Ohio  St.  205. 


-5014]  JUDGMENT  IN  GENERAL.  105 

allegations  of  the  parties  in  their  j)lea(liugs,  is  not  a  final  judgment.' 
But  otherwise,  a  judgment  of  dismissal  and  for  costs,  though  without 
prejudice,  is  a  final  judgment. ' 

A  plaintiff,  after  an  answer  amounting  to  a  counterclaim  has  been 
filed,  can  not  dismiss  the  action.^ 

211.  Dismissal  for  7cant  of  Jurisdiction. 
[Title.] 

On  motion  of  the  defendant,  and  it  appearing  that  this 
court  has  no  jurisdiction  of  the  subject-matter  of  this  action, 
the  case  is  liereby  stricken  from  tlie  docket. 

212.  (Sec.  5313.)     Dismissal  for  neglect  in  serving  other  defend- 

ants. 
ITith.'] 

On  motion  of  the  defendant,  C.  D.,  and  it  being  shown  to 
the  court  that  the  plaintiff  has  neglected  for  an  unreasona- 
l)le  time  to  serve  summons  herein  on  E.  F.,  co-defendant 
herein,  it  is  ordered  that  the  petition  l)c  dismissed  at  plaint- 
iff's cost,  as  for  want  of  prosecution  [but  without  prejudice 
to  a  future  action.^] 

213.  (Sec.  5314,  1.)     Dismissal  without  prejudice — by  ijlaintiff. 
[Title.] 

!N"ow  comes  the  phiintifi",  and  dismisses  this  action  at  his 
own  cost  without  prejudice  to  a  future  action. 

214.  (Sec.  5314,  2.)     Case  dismissed  for  want  of  prosecution. 
[Title.] 

This  cause  being  this  day  called  for  trial,  and  the  plaintiff 
failing  to  appear  in  person  or  by  attorney,  the  action  is  hereby 
dismissed  at  plaintiff's  cost  without  prejudice  to  a  future 
action. 

1  Evans  r.  lies,  7  Ohio  St.  233. 

2  Philips  V.  Mustard,  3  W   L.  M.  141. 
3Wiswell  V.  First  Con.  Ch.,  14  Ohio  St.  31. 
*  May  be  added  by  sec.  5314,  4. 


106  JOURNAL    ENTRIES.  [SEC.  5314- 

215.  (Sec.  5314,  3.)  Case  dismissed  for  v:ant  of  necessary  par- 
ties. 

intle.'] 

On  motion  of ,  and  it  being  shown  to  the  court  that  N". 

P.  is  a  necessary  party  plaintiff  [or,  defendant]  to  this  action, 
and  that  he  has  not  been  made  a  party,  the  petition  is  hereby 
dismissed  at  plaintiff's  cost  without  prejudice  to  a  future  ac- 
tion. 

For  entries  under  other  subdivisions  of  section  5314,  see — 

4.  Entry  No.  212. 

5.  Entry  No.  267. 

6.  For  form  of  vacation  entry,  see  page  9,  under  which  make  dis- 
missal as  in  Entry  No.  213. 

For  judgment  under  section  5315,  see  Entry  No.  210. 

Sale  of  mortgaged  property — 

The  power  of  courts  to  appoint  special  masters  for  the  sale  of  specific 
real  property,  is  not  taken  away  by  the  code,  nor  is  it  essential,  un- 
less required  by  the  order  of  the  court,  that  such  special  master  give 
bond  or  take  an  oath  of  office.^  * 

Section  5021  provides  thai,  when  the  plaintiff  asks  it  in  his  petition, 
a  judgment  for  the  money  due  may  be  rendered  as  in  other  cases  for 
the  recovery  of  money  only.  This  judgment  of  course  has  all  the 
effect  of  any  other  personal  judgment,  and  execution  may  issue  on  it 
in  addition  to  the  order  for  sale.^  But  where,  without  a  personal  judg- 
ment being  taken  or  asked,  a  decree  in  chancery  merely  finds  the 
amount  due,  and  subjects  certain  securities  to  be  sold  for  its  satisfaction, 
it  is  not  a  decree  for  the  remainder  of  the  debt  after  the  securities 
-are  exhausted,  nor  can  execution  be  issued  for  the  unpaid  balance.' 

1  Mayer  v.  Wick,  15  Ohio  St.  548. 

2  In  an  action  to  obtain  judgment  on  a  promissory  note  secured  by  mortgage, 
and  to  foreclose  the  mortgage,  judgment  should  be  rendered  on  the  note,  and 
.an  order  made  for  the  sale  of  the  mortgaged  promises.  Howlett  r.  ]\Iartin,  3 
Law  G.  266. 

The  holder  of  a  note  secured  by  mortgage  may,  in  a  single  action,  under  the 
act  of  February  19,  1864  (S.  &  S.  575;  sec.  5021),  have  a  judgment  against  all 
the  makers  of  the  note,  and  a  sale  of  the  mortgaged  premises,  although  the 
mortgage  is  executed  only  by  a  part  of  the  makers  of  the  note.  King  v.  Saf- 
ford,  19  Ohio  St  587. 

But  a  personal  judgment  can  not  be  taken,  unless  the  petition  contains  a 
prayer  for  such  judgment.     Giddings  v.  Barney,  :]1  Ohio  St.  80. 

3  Hamilton  v.  Jefferson,  13  Ohio,  417. 


-5814.]  JUDGMENT    IN    GENERAL.  lOT 

But  even  in  such  a  ease  t lie  decree  may  l)e  si >  framed,  when  personal 
service  on  the  defendant  has  been  had,  that  after  the  mortgaged  prop- 
erty has  been  exhausted  execution  may  be  had  on  the  decree  for  the 
balance  remaining  due  as  upon  judgment  at  law,  as  given  after  Entry 
No.  227.' 

As  t.)  remanding  ca.sc  to  the  Common  Pleas  when  the  decree  for 
sale  is  entered  in  the  District  Court,  .see  Entry  No.  163,  and  note. 

Also  for  other  entries  ap])licable  to  cases  of  sale  of  real  estate,  see 
under  Execution. 

The  decree  for  sale  may  of  course  be  entered  either  after  a  trial 
of  the  issues  made  by  pleadings  or  on  the  default  of  the  defendant. 
For  convenience  the  forms  in  both  cases  are  given  in  this  place,  and  a 
finding  for  each  is  giv^en  to  be  used  as  a  preface  to  any  of  the  subse- 
(jueut  decrees. 

Preface  I. — For  a  decree  for  sale  of  morlga(je<l  premises  after- 
trial  on  pleadings. 

[Title.-] 

This  cause  now  coming  on  for  hearing,  was  submitted  to- 
the  court  on  the  pleadings,  [or  specifically  name  the  plead- 
ings, thus:  on  the  petition,  the  answer  of  the  defendant, 
C.  D.,  and  the  answer  and  cross-petition  of  the  defendant, 
E.  F.,  and  the  reply  to  the  answer  of  C.  D.],  and  the  evidence, 
and,  on  consideration  tliereof,  the  court  find  on  the  issue- 
joined  for  the  plaintiff. 

Preface  II. — For  a  decree  for  sale  of  mortgaged  premises  on 
defendant's  default. 

[Title.] 

This  cause  now  coming  on  for  hearing  on  the  petition  [of 
the  plaintiff,  the  cross-petition  of  the  defendant,  E,  F.]  and 
tlie  evidence,  the  court  find  that  the  defendant,  C.  D.,  has- 
been  duly  served  with  summons  in  tliis  case,  and  that  he  is 
in  default  for  answer  and  demurrer,  and  that  the  allegations 
of  the  petition  [and  cross-petition]  are  thereby  confessed  by 
him  to  be  true. 

^  See  Maholm  r.  Marshall,  29  Ohio  St.  615,  and  other  cases  there  cited. 


108  journal  entries.  [sec.  5316— 

Decrees  for  sale — 

216.  (Sec.  5316.)     Amount  found  due  to  plaintiff  [ivith  personal 
judgmeni'\  ^  and  decree  for  sale,  where  there 
is  no  cross-petitioji. 

[Title.] 

Begin  v'ith  Preface  I.  or  11.,  above,  and  continue-] — and  tliat 
there  is  due  the  plaintiff  from  the  defendant,  C.  D.,  on  the 
promissory  note  \or,  notes]  set  forth  in  the  petition,  with  in- 
terest to  the  first  day  of  this  term  [or,  date  of  this  decree], 
the  sum  of dollars. 

The  court  further  find  that  in  order  to  secure  the  payment 
of  said  note  [or,  notes],  the  defendants,  C.  D.  and  M.  D.,  his 
wife,  executed  and  delivered  to  said  A.  B.,  the  plaintiff,  their 
certain  mortgage  as  in  the  petition  described,  and  on  the 
premises  therein  described ;  that  said  mortgage  was  duly  re- 
corded in  book ,  page ,  of  the  records  of  mortgages 

of county,  and  is  a  good  and  valid  lien  on  the  premises 

described  in  the  petition,  and  that  the  conditions  in  said 
mortgage  have  been  broken. 

It  is  therefore  [considered  by  the  court  that  the  plaintiff 

recover^  from  the  defendant  the  said  sum  of dollars  and 

his  costs  herein  expended.     And  it  is  further]  adjudged  and 

■  decreed  that  unless  the  defendant,  C.  D.,  shall  within 

days^  from  the  entry  of  this  decree,  pay,  or  cause  to  be  paid, 
to  the  clerk  of  this  court  the  costs  of  this  case,  and  to  the 
plaintiff'  herein  the  sum  so  found  due  as  aforesaid,  with  in-' 

terest  from  the day  of ,  18 — ,  *  the  defendants'  equity 

of  redemption  be  foreclosed,  and  said  premises^  be  sold,  and 
that  an  order  of  sale  issue  therefor  to  the  sheriff  of 

I  Bv  virtue  of  section  5021.  If  personal  judgment  is  not  desired,  omit  the 
part  in  brackets. 

2 It  is  not  proper  practice  for  the  judgment  upon  the  mortgage  debt  to  direct 
a  sale  absolutely,  without  any  time  being  given  to  the  mortgagor  to  make  pay- 
ment. A  time  for  payment  should  be  stated,  and  a  sale  ordered  in  the  event 
of  failure.     King  v.  Longworth,  7  Ohio,  231. 

3  It  is  not  necessary  to  put  in  the  decree  the  description  of  the  property, 
thouo'h  it  is  often  done  as  a  precautionary  measure,  considering  that  papers  are 
liable  to  be  lost  or  mislaid. 

*The  sale  may  also  issue  to  the  sheriff  "as  special  master  commissioner;"  and 


-5ol0,]  JUDGMENT    IN    GENERAL.  109 

county  *  [or,  R.  W.,  a  master  commissioner  of  this  court ;  or, 
to  F.  G.,  who  is  hereby  appointed  a  special  master  commis- 
sioner for  that  purpose],  directing  him  to  appraise,  adver- 
tise, and  sell  said  premises  as  upon  execution,^  and  report  his 
proceedings  to  this  court  for  further  order. 

Court  m,(uj  add  by  section  5404  :] 

And  it  being  for  the  best  interests  of  all  parties,  it  is  or- 
dered that  the  sale  be  upon  the  premises,  instead  of  at  the 
court-house. 

If  parties  desire  that  terms  of  sale  should  be  other  than  cash,  before 
laud  has  been  twice  advertised  and  ofJered  for  sale  (as  provided  for 
in  section  5417),  the  order  may  bo  made  by  consent  of  parties,  thus  : 

Order  that  time  be  allowed  in  jyaytnents. 

And,  by  consent  of  parties,  it  is  ordered  that  said  laud 

1)0  sold  on  terms  of  one-third  cash  :  one-third  in months, 

and    one-third    in months  from   the    day    of  sale,    the 

deferred  payments  to  draw per  cent  interest  and  be  se- 
cured by  mortgage  on  the  premises. 

Court  may  also  add.  by  section  5394 :] 
Order  dispensing  with  German  adrertisement. 

And,  on  motion  of  the  plaintiff,  and  for  good  cause  shown, 
advertisement  of  sale  in  a  German  newspaper  is  hereby  dis- 
pensed with.^ 

If  the  order  is  to  a  special  master,  add  to  the  above  decree,  if  a 
bond  is  required  of  him ;] 
Order  that  special  master  give  bond. 

And  it  is  ordered  that  before  entering  upon  his  duties,  said 
F.  G.  shall  enter  into  an  undertaking  to  the  approval  of  the 
court,  and  conditioned  according  to  law,  in  the  sum  of  ^ . 

And  thereupon  came  the  said  F.  G.,  and,  as  such  special 
master,  presented  his  bond,  with  S.  T.  and  C.  E.  as  sureties, 
to  the  approval  of  the  court. 

he  is  not  required  to  take  an  additional  oath,  or  give  an  additional  bond.  See 
Norton  v.  Gray,  Cuyahoga  Common  Pleas,  1857,  1  W.  L.  M.  404. 

1  Sec.  5400. 

2  By  the  same  section,  an  order  may  be  added  that  advertisement  of  the  sale 
be  made  in  a  newspaper  printed  in  the  Bohemian  language. 


110  JOURNAL    ENTRIES.  [SEC.  5316- 

217.  (Sec.  5316.)     Amount  fuuml  due  to  plaintijf  and   cross- 
petitioner   [with  personal  judgment'],^   and 
decree  for  sale ; — when  all  the  notes  are  se- 
cured by  one  mortgage. 
[Title.] 

Use  Preface  I.  or  II.,  p.  107,  and  continue:'] — and  tliat  there 
is  due  to  the  plaintift'from  the  defendant,  C.  J).,  on  the  prom- 
issory note  [or,  notes]  set  fortli  in  the  petition,  with  interest 
to  tlie  first  day  of  this  term,  the  sum  of dollars. 

The  court  further  find  that,  in  order  to  secure  the  payment 
of  said  note,  with  others,  the  defendants,  C.  D.,  and  M.  D., 
his  wife,  executed  and  delivered  to  said  A.  B.  their  certain 
mortgage,  as  in  the  petition  described,  and  on  the  premises 
therein  described ;  that  said  mortgage  was  duly  recorded  in 

book ,  page  ,  of  the  records  of  mortgages  of 

county,  Ohio,  and  is  a  good  and  valid  lien  [or,  the  first  and 
best  lien]  on  the  premises  described  in  the  petition  ;  and  that 
the  conditions  of  said  mortgage  have  been  broken. 

And  the  court  further  find  that  there  is  due  to  the  defend- 
ant, E.  F.,  from  the  defendant,  C.  D.,  on  the  note  set  up  in 
his  cross-petition,  including  interest  to  the  first  day  of  this- 
term,  the  sum  of dollars,  and  that  the  mortgage  herein- 
above set  forth  was  given  to  secure  the  payment  of  this  note 
as  well  as  the  one  held  by  the  plaintifl"  herein. 

It  is  therefore  [considered  by  the  court  that  the  plaintiff 
recover*  from  the  defendant,  C.  D.,  the  said  sum  of dol- 
lars, and  that  the  defendant  E.  F.  recover  from  his  co-defend- 
ant the  said  sum  of dollars,  as  heretofore  respectively 

found  due  them;  audit  is  iurther]   adjudged  and  decreed 

that,   unless  said   defendant,   C.  D.,  shall,  within  days- 

from  the  entry  of  this  decree,  pay,  or  cause  to  be  paid,  to  the 
clerk  of  this  court  the  costs  in  this  case,  and  to  the  plaintiff", 
and  to  the  defendant,  E.  F.,  the  sums  so  found  due  them  as 
aforesaid,  with  interest  from  the day  of  *,  the  de- 
fendant's equity  of  redemption  be  foreclosed,  and  said  prem- 
ises be  sold,  and  that  an  order  of  sale  issue  therefor  to  the 
sheriff'  of county  [or,  to  R.  W.,  a  master  commissioner 

*  By  sec.  5021.     Omit  part  in  brackets  if  no  personal  judgment  is  desired. 


-5316.]  JUDGMENT  IN  GENERAL.  Ill 

of  this  court],  directing  him  to  appraise,  advertise,  and  sell 
said  premises  as  upon  execution,  and  report  liis  proceedings 
to  this  court  for  further  order.^ 

218.  (Sec.  531G.)  Amounts  found  due  to  plaintiff  and  cross- 
petitioner  [with  personal  judgment^^  and 
decree  for  sale — when  notes  are  secured  by 
several  mortgages. 

[_2itlc.'\ 

Use  Preface  1.  or  11.,  p.  107,  and  continue:] — and  that  there 
is  due  to  the  phxintiff  from  the  defendant,  C.  D.,  on  the 
promissory  note  \_or,  notes]  set  forth  in  the  petition,  with  in- 
terest to  the  first  day  of  this  term,  the  sum  of dollars. 

The  court  further  find  that,  in  order  to  secure  the  payment 
of  said  note,  the  defendant,  C.  D.,  and  M.  D.,  liis  wife,  exe- 
cuted and  delivered  to  said  A.  B.  their  certain  mortgage,  as 
in  the  [)etition  described,  and  on  the  premises  therein  de- 
scribed ;  that  said  mortgage  was  duly  recorded  in  book , 

page ,  of  the  records  of  mortgages  of county,  Oliio, 

and  is  a  good  and  valid  [or,  the  first  and  best]  lien  on  the 
premises  described  in  the  petition,  and  that  the  conditions  of 
said  mortgage  have  been  broken. 

And  the  court  further  find  that  there  is  due  to  the  defend- 
ant, E.  F.,  from  the  defendant,  C.  D.,  on  the  note  set  up  in 
the  cross-petition  of  the  said  E.  F.,  including  interest  to  the 

first  day  of  this  term,  the  sum  of dollars;  and  that,  to 

secure  the  payment  of  said  note,  the  defendant,  C.  D.,  and 
M.  D.,  his  wife,  executed  and  delivered  to  said  E.  F.  their 
certain  mortgage,  as  in  the  cross-petition  described,  and  on 
the  premises  therein  described,  being  the  same  premises  [or^ 
a  part  of  the  same  premises ;  or,  being  the  same  premises  to- 
gether with  other  property]  as  described  in  the  petition ;  that 

said  mortgage  was  duly  recorded  in  book ,  page , 

of  the  records  of  mortgages  of county,  and  is  a  good 

and  valid  lien,  after  the  lien  of  the  plaintiff",  on  said  prem- 

1  For  other  orders  that  may  be   added,  see  after  the  last  decree.     See,  also, 
notes  to  last  decree. 

2  By  sec.  5021.     If  personal  judgment  is  not  desired,  omit  the  part  of  this  de- 
cree in  brackets. 


112  JOURNAL    ENTRIES.  [SEC.  5316- 

ises  for  the  amount  so  found  due  to  the  said  E.  F.  ;  ^  and  that 
the  conditions  of  said  mortgage  have  heen  broken. 

It  is  therefore  [considered  Ijy  the  court  that  the  plaintiff 
recover-  from  the  defendant,  C.  D.,the  said  sum  of dol- 
lars, and  that  the  defendant,  E.  F.,  recover  from  his  co-de- 
fendant the  said  sum  of doUars,  as  heretofore  respect- 
ively found  due  them;  audit  is  further]  adjudged  and  de- 
creed that,  unless  said  defendant,  C.  D.,  shall,  within 

days  from  the  entry  of  this  decree,  pay,  or  cause  to  be  paid 
to  the  clerk  of  this  court  the  costs  in  this  case,  and  to  the 
plaintiff",  and  to  the  defendant,  E.  F.,  the  sums  so  found  due 

them  as  aforesaid,  with  interest  from  the day  of *, 

the  defendant's  equity  of  redemption  be  foreclosed,  and  said 
premises  be  sold,  and  that  an  order  of  sale  issue  therefor  to 

the  sheriff  of county  [or,  to  R.  AV.,  a  master  commissioner 

of  this  court],  directing  him  to  appraise,  advertise,  and  sell 
said  premises  as  upon  execution,  and  report  his  proceedings 
to  this  court  for  further  order.^ 

219.  (Sec.  5316.)  Decree  finding  part  of  several  iiofr.s  dae.  [jier- 
sonal  judgment]^  and  decree  for  sale} 

[ntle.'] 

Use  Preface  I.  or  II.,  on  p.  107,  and  continue  ■] — and  that  the 
defendant  executed  to  the  plaintiff  the  four  several  notes,  as 
set  forth  in  the  petition  ;  that  one  of  said  notes  was  past  due 
when  the  petition  was  filed ;  that  one  has  become  due  since 
that  time,  and  that  both  of  said  notes  are  unpaid  ;*  and  tliut 

1  A  decree  for  sale,  and  a  sale  made  upon  finding  the  amount  due  the  plaint- 
iff", without  determining  any  other  liens,  are  good.  D.,  X.  &  B.  R.  K.  Co.  ( . 
Lewton,  20  Ohio  St.  411. 

The  finding  of  other  liens  may  be  deferred,  and  made  in  the  decree  of  con- 
firmation.    See  Dempsey  v.  Bush,  18  Ohio  St.  383. 

2  By  sec.  5021.    Omit  the  part  in  brackets  if  personal  judgment  is  not  desired. 

3  Other  orders  may  be  added  if  desired,  as  after  Entry  No.  216.  See,  also, 
notes  to  decree  No.  216. 

*  Where  a  bill  of  foreclosure  sets  forth  some  notes  as  past  due,  and  others  u^- 
running  to  maturity,  a  decree  may  be  taken  for  all  the  notes  due  at  the  time  oi 
the  decree,  without  a  supplemental  bill.  Hamilton  Supreme  Court,  1844,  Drake 
V.  Bracket,  1  W.  L.  J.  395;  King  v.  Longworth,  7  Ohio,  585. 

But  no  judgment  can  be  taken  for  the  note  not  yet  duo.  King  r.  Longworth, 
supra. 


—5316.]  JUDGMENT  IN  GENERAL.  113 

the  others  arc  not  yet  due.  The  court  further  find  that  there 
is  due  to  the  plaintiff  from  the  defendant,  on  said  notes  wliich 
are  overdue,  with  interest  to  the  first  day  of  this  term,  the 
sum  of dollars. 

The  court  further  find  that,  in  order  to  secure  to  plaintiff 
the  payment  of  said  several  notes,  the  defendants,  C.  D.,  and 
M.  D.,  his  wife,  executed  and  delivered  to  said  A.  B.  their 
•certain  mortgage,  as  in  the  petition  described,  and  on  the 
premises  therein  described;  that  said  mortgage  was  duly  re- 
corded in  book ,  page ,  of  the  records  of  mortgages 

of county,  and  is  a  good  and  valid  lien  on  the  premises 

described  in  the  petition;  and  that  the  conditions  of  said 
mortgage  have  been  broken. 

It  is  therefore  [considered  by  the  court  that  the  plaintiff 
recover^  from  the  defendant,  0.  D.,  the  said  sum  of dol- 
lars, and  his  costs  herein  expended.  And  it  is  further]  ad- 
judged and  decreed  that,  unless  the  defendant,  C.  D.,  shall, 

within days  from  the  entry  of  this  decree,  pay  or  cause  to 

be  paid  to  the  clerk  of  this  court  the  costs  of  this  case,  and  to 
the  plaintiff  herein  the  sum  so  found  due  as  aforesaid,  with 

interest   from   the  day  of ,  18 — ,  *  the  defendant's 

equity  of  redemption  be  foreclosed,  and  said  premises  be 
sold,  and  that  an  order  of  sale  issue  therefor  to  the  sheriff  of 

county  \_or,  to  R.  W.,  a  master  commissioner  of  this  court], 

directing  him  to  appraise,  advertise,  and  sell  said  premises 
as  upon  execution,  and  report  his  proceedings  to  this  court 
for  further  order,- 

-20.  (Sec.  531G.)  Decree  foreclosing  mortgage  given  to  indem- 
nify, etc.,  and  ordering  sale. 

[Title.'] 

Use  Preface  I.  or  II., page  107,  and  continue-] — and  that  said 
plaintiffs  did,  on  the  1st  day  of  February,  1871,  at  the  request 
of  said  defendant,  D.  G.,  indorse  the  one  hundred  and  ten 
promissory  notes  mentioned  and  described  in  said  petition  ; 
and  tliat  D.  G.,  for  the  purpose  of  securing  and  indemnifying 

'  If  personal  judgment  is  not  wanted,  omit  the  part  in  brackets. 
^  Add  other  orders,  if  desired,  as  after  Entry  I^o.  216.    See  also  notes  after 
decree  No.  216. 


114  JOURNAL    ENTRIES.  [SEC.  5316- 

saicl  plaintiffs  against  loss  and  damage  on  account  of  tlieir 
said  indorsement,  did,  on  the  day  aforesaid,  make,  execute-, 
and  deliver  to  plaintiffs  the  mortgage  described  in  said  i)eti- 

tion,  which  was  duly  recorded  in  book ,  page ,  of 

the    records  of  mortgages    of  county,  and   then    and 

thereby  became,  and  still  is,  a  valid  lien  on  the  real  estate  in 
the  petition  described. 

And  the  court  further  find  that  said  D.  G.  did  not  pay,  or 
cause  to  be  paid,  said  twenty-notes  maturing  at  nine  months 
after  their  date,  but  permitted  all  of  said  notes  to  mature  and 
be  protested,  and  the  liability  of  said  plaintiffs,  as  indorsers, 
to  become  fixed  and  absolute,  and  that  said  plaintiffs  were 
compelled  to,  and  did,  pay  seven  of  said  notes,  as  stated  in 
said  petition,  amounting  in  the  aggregate  to  §6,146.11,  ex- 
clusive of  interest;  and  that  they  also  paid,  on  said  seven 
notes,  the  interest  which  had  accrued  thereon  from  tlieir 
date,  December  22, 1870;  and  the  court  finds  that  said  plaint- 
iffs are  liable  and  bound  to  pay  all  the  remaining  fourteen  of 
said  notes,  maturing  at  nine  months  after  date,  as  stated  in 
said  petition,  with  interest  from  date. 

And  the  court  finds  that  said  plaintiffs  are  entitled  to  have 
said  mortgage  foreclosed,  and  the  said  mortgaged  property 
in  the  petition  described  sold,  for  the  purpose  of  indemnify- 
ing them  for  the  money  so  paid  out  by  them,  as  well  as  to 
indemnify  them  for  what  they  may  hereafter  be  compelled 
to  pay  on  the  other  notes  mentioned  in  said  petition,  which 
have  matured,  and  on  which  their  liability  has  become  fixed,, 
as  aforesaid. 

Wherefore,  it  is  ordered  and  decreed  that,  unless  said  D. 

G.  shall,  within days  from  this  date,  pay,  or  cause  to  be 

paid,  to  the  clerk  of  this  court  the  costs  of  this  action,  and 
to  said  plaintiffs  the  amount  so  as  aforesaid  paid  out  by  them, 
in  taking  up  and  pa3'ing  said  seven  notes,  and  shall  relieve 
and  free  them  from  all  liability  on  said  remaining  fourteen 
notes  above  mentioned,*  the  defendant's  equity  of  redemption 
be  foreclosed,  and  said  premises  be  sold,  and  that  an  order 

of  sale  issue  therefor  to  the  sheriff  of county  [or,  to  R. 

W.,  a  master  commissioner  of  said  court],  directing  him  to 


-5316.]  JUDGMENT  IX  GENERAL.  115 

appraise,  advertise,  and  sell  said  ijremises,  as  upon  execution, 
and  report  his  proceedings  to  this  court  for  further  order.' 

'221.  Decree  finding  a  deed  and  lease  back  to  be  a  mortgage,  and 
for  foreclosure  of  same. 

[Title.'] 

U^e  Preface  1.  or  11. ,  puge  107,  aiul  continue  {\ — The   court 

iii-thor  find  that,  on  tlie  day  of ,  18 — ,  u  deed  was 

uiudc  hy  the  plaintiff  to  the  defendant,  conveying  the  prem- 
ises described  in  the  petition,  which  deed  is  recorded  in  hook 

,  page ,  of  tlie  records  of  deeds  of county,  Ohio, 

and  that,  on  tlic  siuno  day,  a  lease  was  made  Ijy  the  defend- 
ant to  the  plaintiff  of  the  same  premises,  which  lease  is  re- 
corded in  book ,  page ,  of  the  records  of  leases  of 

county,  Ohio,  and  that,  at  the  time  said  instruments 

were  executed,  it  Avas  the  understanding  and  intention  of 
said  parties  that  the  deed  and  lease  back  should  together 
■constitute  and  be  a  mortgage  on  the  said  premises;  and  they 
arc  now  so  found  and  declared  to  be  by  the  court. 

The  court  further  find  that  there  is  due  to  the  plaintiff 
from  the  defendant  upon  the  said  deed  and  lease,  with  inter- 
est to  the  first  day  of  this  term,  the  sum  of  dollars, 

which  is  a  good  and  valid  lien  on  the  said  premises. 

It  is  therefore  adjudged  and  decreed  that,  unless  the  said 

C.  D.  shall,  within days  from  the  entry  of  this  decree, 

pay,  or  cause  to  be  paid,  to  the  clerk  of  this  court  the  costs 

■of  this  case,  and  to  the  plaintiff' herein  the  said  sum  of  $ , 

with  interest  from  the day  of  ,  18 — ,  said  premises 

shall  be  sold  as  upon  execution  at  law,  and  that  an  order  of 
sale  issue  therefor  to  the  sheriff'  \or,  to  E.  W.,  a  master  com- 
missioner of  said  court,  as  in  case  of  foreclosure  of  a  mort- 
gage, directing  him  to  appraise,  advertise,  and  sell  said  prem- 
ises as  upon  execution,  and  report  his  proceedings  to  this 
court  for  further  order.- 

lAdd  other  orders,  as  after  decree  No.  216,  if  desired.     See  also  notes   to 
see.  216. 

^See  notes  to  decree  No.  216.  Other  orders  may  also  be  added,  as  after  No. 
216. 


116  JOURNAL    ENTRIES.  [SEC.  5316- 

222.  (Sec.  5316.)     Order  to  subdicide  real  estate. 
[Title.'] 

On  motion  to  this  court  by  the ,  and  good  cause  shown, 

it  is  ordered  that  the  slierifF,  before  making  an  appraisement 
of  the  premises  heretofore  <jrdered  in  this  action  to  be  sold,, 
cause  the  same  to  be  subdivided  into  lots  of  such  size  and 
form  as  in  his  opinion  will  sell  to  the  best  advantage ;  and 
that  he  appraise,  advertise,  and  sell  the  said  premises  by  lots 
according  to  said  subdivision. 

And  it  is  further  ordered  that  said  sheriff,  if  need  be,  may 
call  to  his  aid  a  competent  surveyor  for  the  running  and  es- 
tablishing of  the  lines  of  said  subdivision,-  and  for  determin- 
ing the  proper  measurement  and  area  of  said  lots. 

223.  (Sec.  5317.)      When  property  is  situated  in  more  than  one- 

county — order  that  sheriffs  ofrespectire  coun- 
ties sell. 

[Title.] 

As  in  any  of  the  above  entries  to  *  and  conclude ;] — the  defend- 
ant's equity  of  redemption  be  foreclosed  and  said  premises  be 
sold.     And  it  appearing  that  said  premises  are  situated  partly 

in  this  county  and  partly  in  the  county  of ,  it  is  ordered 

that  the  sheriff  of  each  county  sell  so  much  of  said  real  estate 
as  lies  in  his  own  count}',  and  that  orders  of  sale  issue  there- 
for to  said  sheriffs,  in  accordance  with  the  above  order,  direct- 
ing them  to  appraise,  advertise  and  sell  said  promises,  as  upon 
execution,  and  return  their  proceedings,  wnth  ])roceeds  of  sale, 
to  this  court  for  further  order.  And  it  is  ordered  that  each 
sheriff  select  appraisers  from  his  own  county,  and  make  pub- 
lication of  the  sale  in  his  own  county  only  [or,  in  both  coun- 
ties.] 

224.  (Sec.  5317.)     Same — one  officer  directed  to  sell  the  whole. 
[Title.] 

As  in  a7}y  of  the  above  decrees  to  *  and.  continue .-] — the  defend- 
ant's equity  of  redemption  be  foreclosed  and  said  premises  be- 
sold.     And  it  appearing  that  said  premises  are  situated  partly 

in  this  county  and  partly  in  the  county  of ,  it  is  ordered 

that  the  sheriff  of  this  county  sell  all  of  said  property,  and 
that  an  order  of  sale  issue  therefor  to  him,  directing  him  to 


-5317]  JUDGMENT  IN  GENERAL.  117 

appraise,  advertise  and  sell  all  of  said  premises,  as  upon  exe- 
cution, and  bring  the  proceeds  into  court  for  further  order. 
And  it  is  ordered  that  said  sheriff  may  select  appraisers 
from  either  county,  and  that  one  set  appraise  the  whole  [or, 
that  said  sheriff  select  appraisers  from  each  county  to  appraise 
the  lands  in  their  own  county]  and  that  he  make  publication 
of  the  sale  in  both  counties  \_or,  in county  only.] 

Confirmation  and  distribution — 

The  court  can  confiriii,  or  set  aside,  a  judicial  sale,  bat  can  not  modify 
its  terms.' 

225.  Decree  of  covjirmation,  order  for  deed,  and  distribution  of 
proceeds. 

[Title.'] 

On  motion  of  the  plaintiff,  and  on  his  producing  the  return 
of  the  sheriff  [or,  the  report  of  the  master  commissioner  herein] 
of  the  sale  made  under  the  former  order  of  this  court;  and 
the  court,  on  careful  examination  of  the  proceedings  of  the 
said  sheriff  [or,  master  commissioner]  being  satisfied  that  the 
same  liave  been  had  in  all  respects  in  conformity  to  law  and 
the  orders  of  this  court,  it  is  ordered  that  the  said  proceedings 
and  sale  be,  and  they  are  hereby,  approved  and  confirmed. 
And  it  is  further  ordered  that  the  said  sheriff  [or,  the  said 
sheriff  as  special  master  commissioner,^  or,  said  master  com- 
missioner^] convey  to  the  purchaser,  R.  "W.,  by  deed,  ac- 
cording to  law,  the  property  so  sold  ;*  and  the  said  pur- 
chaser is  hereby  subrogated  to  all  the  rights  of  the  said  lien- 
holders,  in  said  premises,  so  far  as  they  may  be  paid  herein, 
for  the  protection  of  his  title  f  and  a  writ  of  possession  is 
awarded  to  put  said  purchaser  in  possession  of  said  premises.^ 

It  is  further  ordered  that  the  clerk  cause  satisfaction  of  the 
mortgage  [or,  mortgages]  herein  sued  on  to  be  entered  on  the 

1  Ohio  Life  Ins.  and  Trust  Co.  r.  Goodin,  10  Ohio  St.  557. 

2  See  note  4,  page  108,  ante.  '  Sec.  5400. 
*Sec.  5401;  also,  see  note  1,  page  155.                   ^See  sec.  5410. 

^This  writ  is  only  awarded  against  parties  to,  or  bound  by,  the  action;  and 
as  the  statute  provides  a  method  of  obtaining  possession  of  property  unlawfully 
withheld,  it  is  doubted  by  some  whether  this  remedy  can  be  resorted  to. 


118  JOURNAL    ENTRIES.  [SEC.  5317- 

record  [or,  records]  thereof,  in  tlie  office  of  the  recorder  of 
county.^ 

And  the  court  coming  now  to  distribute  the  proceeds  of  said 

sale,  amounting  to dollars,  it  is  ordered  that  the  sherift' 

\_or,  master  commissioner]  out  of  the  money  in  his  hands, 
pay— 

I^irst:  To  the  treasurer  of  this  county  the  taxes  penalty 

and  interest  against  said  property,  to  wit,  the  sum  of 

dollars.^ 

Secondly :  The  costs  of  this  action,  taxed  at .* 

Thirdly  :  To  the  plaintiff,  A.  B.,  the  amount  heretofore  found 
due  him,  with  interest,  to  wit,  the  sum  of dollars. 

Fourthly :  To  the  defendant,  E.  F.,  the  amount  heretofore 
found  due  him,  with  interest,  to  wit,  the  sum  of dollars. 

Fifthly :  To  the  defendant,  C.  D.,  the  balance  of  the  money 
remaining  in  his  hands,  to  wit,  the  sum  of dollars. 

If  the  proceeds  of  sale  are  not  sufficient  to  pay  all  the  claims,  and 
the  original  petition,  or  an  amended  petition  or  cross-petition,  has  asked 
for  a  personal  judgment,  and  it  has  not  already  been  given,  the  court 
may,  after  distribution  of  proceeds,  give  a  personal  judgment  and  award 
an  execution  for  the  balance  remaining  due  to  the  plaintiff'  or  a  cross- 
petitioner.  Or,  whether  personal  judgment  has  been  asked  for  or  not, 
execution  may  be  awarded  for  the  balance  remaining  due.^ 

226.   Personal  judgment  for  balance  remaining  due. 

\  Title.] 

As  in  last  to  *,  and  continue:'] 

Thirdly.  To  the  plaintiif,  A.  B.,  the  balance  of  the  said 
money  remaining  in  his  hands,  to  wit,  the  sum  of dol- 
lars, to  be  applied  as  a  credit  upon  his  judgment  against  the 
said  defendant. 

And  there  still  remaining  due  to  the  said  A.  B.  the  sum  of 

dollars,  it  is  considered  that  he  recover  the  same  from 

the  defendant,  C.  D. ;  and  execution  is  awarded  therefor. 


iSee  sec.  4138. 

2  By  sec.  2854.     As  to  what  taxes  are  included,  see  note  under  Entry  No.  288, 
page  155. 

3  See  page  107. 


-5317.]  JUDGMENT   IN   GENERAL.  119 

227.  Execution  awarded  for  balance  remaininfj  due. 
[Title.] 

As  in  No  225  to  *,  and  continue:'] 

Thirdly.  To  the  plantiff,  A.  B.,  the  balance  of  the  said 

money  remaining  in  liis  hands,  to  wit,  the  sum  of  dol- 

hirs,  to  be  applied  as  a  credit  upon  his  judgment  against  the 
said  defendant. 

And  there  still  remaining  due  to  the  said  A.  B.  the  sum  of 

dollars,  execution  is    awarded  against  the   said  C.  1). 

therefor. 

228.  Confirmation   and  distribution,  in   case  of  part   of  several 

notes  being  due. 

[Title.'] 

As  in  ]So  225  to  *,  and  continue:] 

Thirdhj.  The  court  find  that,  since  the  judgment  herein, 
the  third  one  of  the  notes  set  forth  in  the  petition  has  become 
due,  and  is  unpaid,  and  that  there  is  due  the  plaintitf  thereon, 

with  interest  to  the  present  day,  the  sum  of  dollars. 

The  court  further  find  that  the  fourth  one  of  said  notes  in 
the  petition  described  is  not  yet  due,  and  that  there  is  owing 

thereon  to  said  plaintiff  the  sum  of dollars,  which,  the 

court  find,  the  plaiutifl:*  is  entitled  to  receive  out  of  the  pro- 
ceeds of  said  sale,  by  virtue  of  its  lien  on  the  property  sold. 
It  is  therefore  ordered  that  the  sheriff  pay  to  the  plaintiff, 
A.  B.,  the  amount  herein  and  in  the  former  decree  found  due 
and  owing  him,  with  interest,  to  wit,  the  sum  of dol- 
lars. 

Fourthb/.  To  the  defendant,  C.  T>.,  the  balance  of  the  money 
remaining  in  his  hands,  to  wit,  the  sum  of  dollars. 

Building  association  decrees  (Sec.  3833-G) — 

After  breach  of  the  condition  of  a  mortgaije  given  to  secure  the  pay- 
ment of  stated  dues,  interest  on  loans  advanced,  and  fines,  the  decree 
in  an  action  to  foreclose  should  be  confined  to  the  amount  of  such 
dues,  interest,  and  fines  then  due  and  unpaid,^  and  under  the  law  as  it 
now  stands,  section  3835,  as  amended  in  86  v.  87,  would  be  in- 
cluded also  the  proportional  part  of  the  premium  due. 

1  Hagerman  v.  Ohio  Building  and  Saving  Association,  25  Ohio  St.  ]86. 


120  JOURNAL    ENTRIES.  [SEC.  5317- 

Building  associations  are  not  authorized  to  charge  interest  on  the 
premiums  allowed  for  jirecedence  in  taking  loans.  The  money  actually 
advanced  is  the  basis  for  the  computation  of  interest.' 

Fines  can  not  be  imposed  for  default  in  the  payment  of  interest  on 
loans ;  nor  can  more  than  one  fine  be  assessed  in  respect  to  the  same 
installment  of  stated  dues.' 

Upon  distribution,  the  rule  laid  down  by  the  District  Court  of  Ham- 
ilton county,  before  the  amendment  of  77  O.  L.  208,  was  to  find  the 
present  value  of  the  mortgage  as  the  basis  of  distribution.  And  the 
present  value  was  held  to  be  such  a  sum  as  when  put  at  interest  would 
meet  each  installment  up  to  the  time  the  association  was  dissolved.  It 
was  ascertained  by  summing  up  the  successive  weekly  installments  for 
the  probable  future  duration  of  the  association  and  discounting  the 
amount  for  the  mean  or  average  time  between  the  first  installment  and 
the  last;  that  is,  the  probable  future  duration  from  and  after  confirm- 
ation being  one  hundred  and  twenty-two  weeks,  the  mean  or  average 
time  is  sixty-one  and  a  half  w-eeks,  and  $915  being  the  estimate  of  fu- 
ture dues  and  interest,  the  present  value  is  $854.36,  a  sum  which  at 
interest  for  sixty-one  and  a  half  weeks  would  produce  $915. 

Then  the  calculation  stands  thus  : 

Amount  found  due  by  decree  of  sale,   being  amount  of 

dues,  interest,  and  fines  up  to  decree $229  50 

Interest  to  confirmation 4  65 

Dues  and  interest  from  decree  of  sale  to  confirmation 135  00 

Interest  on  above,  average  time 1  48 

Present  value  of  future  dues  and  interest  from  decree  of 

confirmation 854  36 

Sl,224  99 

The  above  rule  differed  from  the  one  previously  laid  down  by  the 
Superior  Court  of  Cincinnati, - 

But  since  the  amendment  of  77  O.  L.  208,  a  more  satisfactory  rule 
will  probably  prevail.  By  that  section  it  is  provided  that  "  after  the 
premium  for  one  year  shall  have  been  paid,  the  borrowing  member 
shall  be  permitted  to  adjust  and  pay  off"  his  loan  by  paying  to  the  as- 
sociation an  amount  which,  added  to  the  dues  and  interest  already 
paid   and   earnings  credited,    will    aggregate  the   sum   actually   bor- 

1  Forest  City  United  Loan  and  Building  Association  v.  Farrell  et  al,  25  Ohio 
St.  208. 

2  Cincinnati  German  Building  Association  No.  3  v.  Flach,  1  Superior  Court, 
reporter,  4C8. 


-5317.]  JUDGMENT  IN  GENERAL.  121 

revved,  with  tlie  legal  rate  of  interest  thereon,  and  a  relative  proportion 
of  the  premium  bid  for  the  time  the  loan  is  retained,  as  hereinbefore 
provided."  This  should  also  be  the  rule  for  determining  the  amount 
due  on  distribution  in  case  of  foreclosure. 

220.  Decree  for  sale  on  foreclosure  of  huildiiif)  association  mort- 
f/agc. 

[Title.] 

Use  Preface  I  or  II,  page  107,  and  continue:] — The  court 
further  find  that  the  defendant  has  failed  to  pay  to  the  plaint- 
iff the  weekly  installments  of  dues,  premium,  and  interest, 
as  in  the  petition  set  forth,  and  that   there  is  due  to  said 

plaintiff,  as  dues,  to  the  date  of  this  decree,  the  sum  of  $ , 

as  premium   the    sum    of    $ ,   as    interest    the   sum    of 

$ ,  and  as  fines  for  the  non-payment  of  said  dues,  the 

sum  of  I ;  making  in  all,  the  sum  of dollars. 

The  court  further  lind,  that  in  order  to  secure  the  regular 
payment  of  said  dues  and  other  installments,  as  well  as  those 
hereafter  to  become  due,  the  said  C.  D.,  and  M.  D.,  his  wife, 
executed  and  delivered  to  this  plaintiff  their  certain  mortgage 
in  the  petition  described,  and  on  the  premises  therein  de- 
scribed ;  that  said  mortgage  was  on  the  day  of  — '■ — , 

18 — ,  duly  recorded  in  book  ,  page ,  of  the  records 

of  mortgages  of  county,  and  that  the  same  is  a  good 

and  valid  [or,  the  first]  lien  on  the  premises  described  in  the 
petition. 

It  is  therefore  considered  by  the  court  that  unless  the  said 

defendants   shall,  within  days  from  the   entry  hereof, 

pay,  or  cause  to  be  paid,  to  the  said  plaintiii"  the  said  sum  of 

$ ,  so  found  due,  and  to  the  clerk  of  this  court  the  costs, 

taxed  herein  at  -^ ,  the  defendant's  equity  of  redemption 

be  foreclosed  and  said  premises  be  sold,  and  that  an  order  of 

sale  issue  therefor  to  the  sheriff  of county  [or,  to  R.  W., 

a  master  commissioner  of  this  court],  directing  him  to  ap- 
praise, advertise,  and  sell  said  premises,  as  upon  execution, 
and  return  his  proceedings  to  this  court  for  further  order.^ 

^  other  orders  may  be  added  as  after  decree  No.  216,  if  desired.  See  also 
notes  to  decree  No.  216. 


122  JOURNAL    ENTRIES.  [SEC.  5318- 

230.  Confirmation  and  distribution  on  building  association  decree^ 
as  before  the  amendment  of  77  0.  L.  208. 

[Title.'] 

As  in  No.  225  to  *,  and  continue:'] 

And  tlie  court  find  that  the  present  value  of  the  mortgage 
held  by  said  plaintiff  amounts  to  the  sum  of  $1,239.22,  and 
that  said  sum  is  the  next  best  lien  upon  the  said  premises  ;  it 
is  therefore  ordered  that  said  sheriff  pay — 

Thirdly.  To  said  plaintiff,  or  to  J.  R.  V.,  its  attorney,  the 
said  sum  of  $1,239.22. 

Fourthly.  That  he  pay  the  balance  remaining  in  his  hands 
to  the  said  defendant  or  his  attorney. 

230a.  Confirmation  and  distribution  on  building  association  de- 
cree, under  the  amendment  of  Sec.  3834,  77  0.  L.  208. 

[Title.] 

As  in  No.  225  to  *,  and  continue:] 

And  the  court  find  that  there  is  due  to  the  plaintifi'  up  to 
the  present  time  on  the  mortgage  set  up  in  the  petition  the 

sum  of  % ,  and  that  said  sum  is  the  next  best  lien  upon 

the  said  premises ;  it  is  therefore  ordered  that  said  sheriff 
pay— 

Thirdly.  To  said  plaintiff,  or  to  J.  R.  V.,  its  attorney,  the 
said  sum  of  $ . 

Fourthly.  That  he  pay  the  balance  remaining  in  his  hands 
to  tiie  said  defendant  or  his  attorney. 

For  judgment  against  a  married  woman,  see  Married  women,  p.  428. 


CHAPTER  XL 

JUDGMENT  UPON  FAILURE  TO  ANSWER. 
Finding  IV. — For  judgment  taken  on  defendant's  default. 

Forms  of  judgment  by  default. 

I.    When  the  court  finds  the  amount  due — 

231.  (Sec.  5320.)     Judgment  by  default  for  money  due. 

232.  (Sec.  5320.)     In  action  for  damages,  damages  assessed  by  the  court, 

etc. 


-5320.]  JUDGMENT    UPON   FAILURE   TO    ANSWER.  123 

2?>?>    (Sec.  fi.'J'JO  )     .Tudjzment,  etc.,  on  cause  of  action  not  put  in  i.ssue. 
234    (Sec.  5320.)     Juilginent  when  part  payment  has  been  made. 

1  r.    When  (he  case  is  referred  to  referee  or  master. 

%\^'..  (Sec.  5320.)     To  take  an  account  before  finding  defendant's  default. 
236.  (Sec.  5320.)     'J'o  take  proof  of  a  fact  before  finding  defendant's  de- 
fault. 

2  ".7.   Judgment  after  the  report  stating  nc<^ount. 
2  !H.   Judgment  after  the  report  finding  fact. 

1:3,).  (Sec.  5320.)     Default  and  indebtedness  found,  and  case  sent  to  a 
referee  or  master  to  take  an  account. 

240.  Judgment  on  tlie  report. 

Hi.    When  the  case  is  sent  to  a  jury. 

241.  (Sec.  5320.)     Default  and   indebtedness  found,  and  case  sent  to  a 

jury  to  assess  damages. 

242.  Verdict  on  assessment  of  damages. 

243.  Judgment  on  tlie  verdict  assessing  damages. 

Rkmittitur — 

244.  Entry  of. 

245.  Order  for. 

By  failure  to  answer,  the  defendant  conclusively  confesses  the  alle- 
gations and  claims  of  the  jjlaiutiif  against  him.* 

Where  summons  is  indorsed  "  for  the  recovery  of  money,"  and  the 
petition  claims  a  further  and  different  relief,  the  court  will  not  enter 
up  a  judgment  by  default  for  answer  against  a  defendant  for  other  re- 
lief than  that  indorsed  on  the  summons;'  nor  for  a  larger  amount, 
though  the  surplus  be  for  iuterest,  no  interest  being  asked  for  in  the 
prayer  of  the  petition.^ 

Wliere  no  answer  has  been  put  in,  a  decree  can  not  be  rendered 
agaiust  infants  by  default,  but  the  plaintiff  must  prove  his  case.* 

Where  a  party,  by  his  own  mistake,  and  without  any  fault  of  the 
adversary  party,  takes  judgment  by  defatdt  for  a  less  sum  than  the 
amount  due  on  his  claim,  he  can  not  maintain  a  second  action  to  re- 
cover the  remainder.^ 

When  the  defendant  is  in  default,  the  court  may,  in  a  j^roper  case, 
render  judgment  without  taking  any  further  proof  than  is  furnished 

'  McKenzie  v.  Perrill  et  al.,  15  Ohio  St.  167. 

«  Williams  v.  llamlin,  1  Handy  S.  C.  E.  95. 

s  Rhodenbaugh  v.  Gary,  1  ^Y.  L.  M.  599 ;  Finckh  v.  Evers,  25  Ohio  St.  82. 

*  Massie  v.  Donaldson,  8  Ohio,  377. 

5  Ewing  r.  MoNairv,  20  Ohio  St.  315. 


124  JOURNAL    ETfTRIES.  [SEC,  5320- 

by  the  affidavit  of  the  petition,  and  the  failure  of  the  defendant  to 
plead. ^ 

When  the  petition  is  founded  on  a  promissory  note,  the  original 
note  should  be  filed  with  the  court  when  judgment  is  taken,  both  as 
evidence  and  to  prevent  its  further  circulation. 

As  a  general  finding  to  be  used  in  case  of  judgment  by  default,  use 
the  following : 

FiXDiXG  IT. — For  judgment  taken  on  defendanfs  default. 

[Title.] 

Now  comes  the  plaintiff,  by  his  attorney,  and  the  defend- 
ant being  in  default  for  answer  and  demurrer, the  court  liiud^'^ 
that  the  allegations  of  the  petition  are  confessed  by  him  to 
be  true. 

Forms  of  judgment  by  default. 

I.    Where  the  court  finds  the  amount  due. 

For  forms  of  judgments  in  general,  which,  of  course,  may  be  ren- 
dered on  defendant's  default  as  well  as  on  submission,  see  the  preced- 
ing chapter. 

231.  (Sec.  5320.)     Judgment  by  default  for  money  due. 
[Title.] 

Use  Finding  IV.,  above,  and  continue:] — and  that  he  is  in- 
debted to  the  plaintiff  in  the  sum  of  $ . 

It  is  therefore  considered  by  the  court  that  the  said  plaint- 
iff, A.  B.,  recover  from  the  defendant  C.  D.,  the  said  sum  of 
dollars,  and  his  costs  herein  expended. 

232.  (Sec.  5320.)     In  action  for  damages,  damages  assessed  by 

the  court,  and  judgment. 

[Title.] 

Finding  IV.,  above,  and,  continue:] — and  that  the  plaintiff 
is  entitled  to  recover  his  damages  by  reason  of  the  premises 
from  the  said  defendant.  And  thereupon  the  court  assess 
said  damages  at  $ . 

It  is  therefore  considered  that  the  plaintiff,  A.  B.,  recover 

from  the  defendant,  C.  B.,  the  said  sum  of  $ ,  and  his  costs 

herein  expended. 

1  Dallas  V.  Ferneau,  25  Ohio  St.  635. 


-6320.]  JUDGMENT    UPON    FAILURE   TO    ANSWER.  125 

233.  (Sec.  5320.)     Judfjment  by  (hfault  on  cause  of  action  not 

put  in  issue,  etc. 

[  Title.] 

And  now  came  the  plaintiff,  by  his  attorney,  and  submitted 
to  the  court  the  petition  and  evidence  and  the  answer  of  the 
defendant  in  this  case.  And  thereupon  the  court  find  that 
the  first  and  second  causes  of  action  in  said  petition  set  forth 
are  not  put  in  issue  by  said  answer,  but  that  as  to  them  the 
defendant  is  in  default  for  i>lca,  and  that  he  is  indebted  to 
plaintiif  upon  the  same  in  the  sum  of  $ . 

It  is  therefore  considered  that  tlie  plaintiff',  A.  B.,  recover 

from  the  defendant,  C.  D.,  the  said  sum  of dollars  so 

found  due,  together  with  his  costs  in  that  behalf  expended. 
And  as  to  the  causes  at  issue,  this  action  is  continued. 

234.  Judgment  by  default  when  'part  payment  has  been  made. 
lTitle.\ 

Findi)iy  IV.,  as  above,  and  continue:] — The  court  further 
find' that,  since  the  filing  of  the  petition  herein,  the  defend- 
ant has  paid  to  plaintiff  on  his  claim  the  sum  of  § ,  and 

that  he  is  still  indebted  to  him  in  the  sum  of dollars. 

It  is  therefore  considered  by  the  court  that  the  plaintifl"  A. 

B.,  recover  from  the   defendant,  C.  D.,the  said  sum  of  § , 

and  his  costs  herein  expended. 

II.    When  the  case  is  referred  to  referee  or  master. 

Sec.  5320  provides,  ou  defendant's  default,  that  if  in  the  determina- 
tion of  the  cause  the  taking  an  account,  proof  of  a  fact,  or  the  assess- 
ment of  damages,  is  necessary,  the  court  may  refer  the  case  to  a 
referee  or  master  for  such  purpose,  or  direct  the  matter  to  be  ascer 
taiued  by  a  jury.  The  referee  in  this  case  would  appear  to  have  about 
the  same  duties  to  perform  and  scope  of  authority  as  in  case  of  refer- 
ence before  the  code,  for  which  see  remarks  p.  73.  When  the  case  is 
sent  to  a  referee  or  master  under  this  section,  it  is  not  usual  for  the 
court  to  find  the  default  and  the  defendant's  indebtedness  so  as  to  pre- 
clude him  from  making  a  defense,  until  after  the  report  comes  in, 
though  it  is  probable  that  it  has  the  power  to  do  so.  Forms  for  both 
methods  of  practice  are  given. 


126  JOURNAL    ENTRIES.  [SEC.  5320- 

235.  (Sec.  5320.)      Case  sent  to  a  referee  or  master  to  fake  an  ac- 

couvt — before  findhuj  (Jefendaht''s  default. 

[rule.-] 

It  being  necessary  that  an  account  should  be  taken  in  this' 
case  between  the  parties  before  the  amount  due  to  the  plaint- 
iff can  be  ascertained,  it  is  now  ordered  that  the  case  be  re- 
ferred for  the  taking  of  such  account  to  E.  F.,  as  referee  [or, 
a  master  commissioner  of  this  court]  ;  and  that  he  report 
[the  testimony  with  his  findings]  ^  to  this  court  without  un- 
necessary delay. 

236.  (Sec.  5320.)      Case  sent  to  referee  or  master  to  take  jyroof  of 

a  fact,  before  finding  defendant's  default. 

ITitle.'] 

It  being  necessary  in  this  case  that  proof  should  be  taken 
as  to  whether  [etc.,  state  fact  to  be  ascei-tained],  and  it  being  in- 
convenient to"  have  the  evidence  taken  before  the  court,  it  is 
hereby  ordered  that,  for  the  taking  of  said  proof,  the  case  be 
referred  to  E.  F.  [one  of  the  master  commissioners  of  this- 
court],  who  is  hereby  directed  to  report  [the  testimony  with 
his  findings]^  to  this  court  without  unnecessary  delay. 

237.  Jadgment  after  the  report  stating  account. 
[Title:] 

!N^ow  came  the  plaintiff,  by  his  attorney,  and  the  defendant 
beins:  in  default  for  answer  and  demurrer,  this  cause  came 
on  to  be  heard  on  the  motion  of  the  plaintiff  to  confirm  the 
report  of  the  referee  [or,  master],  heretofore  filed  herein,  and 
for  judgment.  And  the  court  having  carefully  examined 
the  said  report,  liereby  approve  and  confirm  the  same. 

And  the  said  referee  [or,  master]  having  found  and  re- 
ported, on  taking  the  said  account,  that  there  is  a  balance 
due  thereon  to  the  plaintiff"  from  the  defendant  of dol- 
lars, it  is  therefore  considered  by  the  court  that  the  plaintiff 

recover  from  the  defendant  the  said  sum  of dollars,  and 

his  costs  herein  expended,  including  a  fee  of  % ,  hereby 

allowed  to  the  said  referee  [or,  master],  taxed  at  % . 

^  Optional  with  the  court. 


-5320.]  JUDGMENT    UPON    FAILURE    TO    ANSWER.  127 

238.  Judgment  after  report  finding  fact. 
[Title.-] 

Now  came  the  plaintiff,  by  his  attorney,  and  the  defendant 
heing  in  default  for  answer  and  demurrer,  this  cause  came 
on  to  bo  heard  on  the  motion  of  the  plaintiff  to  confirm  the 
ro])()i-t  of  the  referee  [or,  master],  heretofore  filed  herein,  and 
lor  judgment. 

And  the  court,  after  careful  consideration,  approves  and 
confirms  said  finding  as  the  finding  of  the  court;  and  there- 
upon further  finds  that  the  defendant  is  indebted  to  plaintiff 
in  the  sum  of dollars. 

It  is  therefore  considered  that  the  plaintiff  recover  from 

the  defendant  the  said  sum  of dollars,  together  with  his 

costs  herein  expended,  including  a  fee  of  $ ,  hereby  al- 
lowed to  the  referee  [or^  master],  taxed  at  $ . 

239.  (Sec.  5320.)     Dcfaidt  and  indebtedness  found,  and  case  sent 

to  a  referee  or  master  to  take  an  account. 

{Title.'] 

jS'ow  came  the  plaintift',  by  his  attorney,  and  the  defendant 
being  in  default  for  answer  and  demurrer,  the  court  find  that 
the  allegations  of  the  petition  are  confessed  by  him  to  be  true, 
and  that  the  plaintiff  is  entitled  to  recover  from  the  defend- 
ant the  amount  due  him  upon  the  statements  of  the  petition. 
But  it  being  necessary  that  an  account  should  be  taken  be- 
tween the  said  parties,  it  is,  on  motion  of  the  plaintiff,  or- 
dered that  the  case  be  referred  to  E.  F.,  as  referee  [or,  one 
of  the  master  commissioners  of  this  court],  to  take  and  state 
the  same ;  and  that  he  report  [the  testimony  with  his  find- 
ings]^  to  this  court  without  unnecessary  delay. 

240.  Judgment  on  the  report. 
[Title?^ 

This  cause  having  been  referred  to  E.  E.,  to  take  and  state 
an  account  between  the  parties  hereto,  and  the  report  of  the 
said  E.  F  having  been  filed,  whereby  he  finds  on  said  account 
that  the  defendant  is  indebted  to  the  plaintiff'  in  the  sum  of 

'Optional  with  the  court. 

9 


128  JOURNAL   ENTRIES.  [SEC.  5820- 

$ ,  on  motion  of  the  plaintiff,  and  on  consideration  of  the 

said  report,  it  is  hereby  approved  and  confirmed. 

It  is  therefore  considered  by  the  court  that  the  |)laintiff  re- 
cover from  said  defendant  said  sum  of dollars,  together 

with  his  costs,  including  a  fee  of  $ to  the  said  referee. 

\_or,  master],  taxed  at  $ . 

III.    When  the  case  is  sent  to  a  jury. 

Under  section  5320  there  is,  of  course,  no  issue  to  be  tried,  and  con- 
sequently nothing  to  come  before  a  jury  in  its  usual  capacity  as  given 
by  section  5130;  but,  by  section  5320,  the  couft  may  make  special  use 
of  the  jury,  constituting  them,  as  it  were,  special  masters.  It  is  not 
likely  that  the  court  would  ever  desire  to  refer  a  case  to  a  jury  to  take 
an  account,  and  seldom  to  hear  proof  of  a  fact ;  but  in  most  cases  will  to 
assess  damages ;  and  probably  has  the  power  so  to  refer  either  before  or 
after  finding  defendant's  default  and  indebtedness.  In  either  case,  the 
question  before  the  jury  is  not  whether  the  plaintiff  has  sustained  any 
damages  or  not,  but  "  What  damages  has  the  plaintiff  sustained?" 

241.  (Sec.  5320.)     Default  and  indebtedness  found,  and  case  sent 

to  a  jury  to  assess  damages. 

[Title.'] 

Now  came  the  plaintiff,  by  his  attorney,  and  the  defendant 
being  in  default  for  answer  and  demurrer,  the  court  find  that 
the  allegations  of  the  petition  are  confessed  by  him  to  be  true, 
and  that  the  plaintiff  is  entitled  by  reason  of  the  premises  to 
recover  his  damages  from  said  defendant.  And  it  is  ordered 
that  the  case  be  sent  to  a  jury  to  ascertain  and  assess  the 
same. 

242.  Verdict  on  assessment  of  dam,ages,  under  last  order. 
[Title.'] 

And  now  this  cause  came  on  to  be  heard  upon  inquiry  of 
damages  for  the  plaintiff,  as  heretofore  ordered  by  the  court; 
and  thereupon  came  the  following-named  persons  as  jurors, 
to  wit : 

1.  A.  B.  7.  E.  F. 

2.  C.  D.  8.  G.  TI. 
etc.  etc 

who  were  duly  impaneled  and  sworn  according  to  law. 
And  after  hearing  the  evidence  in  the  case,  the  argument, 


-5320.]  JUDGMENT    UPON   FAILURE    TO    ANSWER.  129 

and  the  charge  of  the  court,  the  jury  retired  to  their  room, 
in  charge  of  the  sheriff,  for  deliberation. 

And  now  come  said  jury  into  open  court,  with  their  ver- 
dict in  writing,  signed  by  their  foreman,  and  say: 

"  "Wc,  the  jury,  upon  inquiry  of  damages  for  tlio  plaintift'  in 

this  action   do  assess  the  same  against  the  defendant  at 

dollars." 

243.  Judgment  on  the  verdict  assessing  damages. 
[Title:] 

The  jury  in  this  action  having,  at  a  former  day  of  this  court, 
upon  an  inquiry  of  damages  for  the  plaintili',  assessed  the 
same  against  the  defendant  at dollars: 

It  is  therefore  considered  by  the  court  that  the  plaintiff,  A. 

B,,  recover  from  the  defendant,  C.  D.,  the  said  sum  of 

dollars,  so  found  due,  together  with  his  costs  herein  expended. 

Remittitur — 

Where  a  judgment  by  default  is  taken  for  more  than  the  amouut 
eliiimed  iu  the  petition,  and  indorsed  on  the  summons,  although  such 
surplus  is  for  the  interest  that  accrues  since  the  filing  of  the  petition 
(no  prayer  for  interest  being  in  it),  it  is  error,  and  the  judgment  will  be 
reversed,  unless  the  creditor  will  remit  such  overplus ;  that  being  re- 
mitted, the  judgment  will  stand.  But  in  such  a  case,  it  being  substan- 
tially a  reversal,  the  costs  of  error  will  be  divided.^  Where  judgment 
is  taken  for  more  than  is  at  the  time  legally  due,  the  error  may  be  cor- 
rected by  remitting  the  excess. - 

244.  Entry  of  remittitur. 
[Title?^ 

And  now,  it  appearing  to  the  court  that  the  judgment  here- 
tofore rendered  herein  is  erroneous,  in  being  for  a  larger 
amount  than  was  claimed  in  the  petition  and  indorsed  on  the 
summons,  the  court,  on  consideration  of  the  premises,  find 

that  said  judgment  should  have  been  for  the  sum  of  

-dollars,  with  interest  from  the da}'  of ,  18 — . 

And  the  plaintiff  now  coming  and  remitting  from  his  said 
judgment  the  sum  of  ^ ,  it  is  therefore  considered  that 

1  Rhodenbaugh  v.  Gary,  1  W.  L.  M.  599. 

2  Doty  I'.  Kigour,  9  Ohio  St.  519. 


130  JOURNAL    ENTRIES.  [SEC.  5320- 

the  said  plaintiff  recover  from  the  said  defendant  the  said 

sum  of dollars,  as  above  found  due,  instead  of  the  said 

amount  originally  found;  together  with  his  costs  herein  ex- 
pended \_or,  any  other  order  as  to  costs-l 

245.     Order  for  remittitur,  etc. 

[Title.] 

This  cause  coming  on  for  hearing  on  the  motion  of  the  de- 
fendant to  set  aside  the  judgment  herein,  because  the  same 
is  for  more  than  was  legally  due  upon  the  petition  and  sum- 
mons, and  the  court  finding  the  claim  of  the  defendant  to  be 
true,  and  that  said  judgment  should  have  been  for  the  sum 

of  I ,  instead  of  $ ,  it  is  ordered  that,  unless  the  plaintiff 

will  remit  from  his  judgment  the  sum  of  $ ,  the  said  judg- 
ment shall  be  set  aside. 

And  thereupon  comes  the  said  plaintiff,  and  consents  to  said 
remittitur,  and  the  same  being  made,  the  motion  to  set  aside 
the  judgment  is  overruled. 


CHAPTER  III. 

JUDGMENT  BY  CONFESSION. 

When  defexdaxt  appears  personally — 

246.  (Sec.  5321  )     Judgment  where  petition  has  been  filed. 

247.  (Sec.  5322.)     Judgment  where  no  petition  has  been  filed. 

When  defendant  appears  by  ax  attorney — 

248.  (Sec.  5324  )     Judgment. 

By  the  code,  a  confession  of  judgment  may  be  made  by  any  person 
indebted,  or  against  whom  a  cause  of  action  exists. 

1.  By  personal  appearance  in  a  court  of  competent  jurisdiction.^ 

2.  By  authorizing  an  attorney  to  confess  judgment  for  him.'' 
Waekant  of  attorney. — The  warrant  of  attorney  is  an  instrument 

in  writing  addressed  to  one  or  more  attorneys  therein  named,  author- 
izing them  generally  to  appear  in  any  court,  or  in  some  specified  court, 
ion  behalf  of  the  person  giving  it,  and  to  confess  judgment  in  favor  of 
some  particular  person  therein  named,  in  an  action  of  debt. 

1  Codo,  sec.  oo'Jl.  -  Code,  sec.  5324. 


-5321.]  JUDGMENT    BY    CONFESSION.  131 

A  warrant  of  attorney  given  to  confess  a  judgment  is  not  revocable ; 
and,  notwithstanding  a  revocation,  judgment  may  be  entered  upon  it.' 
The  death  of  the  (k'l)tor  is,  however,  generally  speaking,  a  revocation.^ 

The  virtue  of  a  warrant  of  attorney  is  spent  by  the  entry  of  one  judg- 
ment, and  a  second  judgment  entered  on  the  same  warrant  is  irregular.^ 

The  warrant  must  be  produced  at  the  time  of  taking  judgment,*  and 
if  not  produced,  the  judgment  may,  on  motion  be  set  aside  as  irregular.* 

If  the  power  of  attorney  is  attached  to  the  note,  forming  a  part  of 
the  same  instrument,  the  negotiability  of  the  note  is  not  destroyed,  but 
if  it  is  transferred,  the  power  of  attorney  becomes  invalid,  and  no  power 
is  given  under  it  to  the  indorsee ;  he  holds  the  note  as  if  no  such  power 
had  ever  been  attached  to  it.®  But  if  the  power  authorizes  the  confes- 
sion of  a  judgment  in  favor  of  any  holder  of  the  note  at  any  time  after 
the  same  becomes  due — quaere  f^ 

It  is  the  custom  of  most  courts  in  Ohio  to  require  notice  to  be  given 
to  the  defendant  of  the  time  and  place  of  taking  judgment. 

In  Pomeroy  v.  Drake,  1  W.  L.  M.  282,  it  is  said  that  a  judgment 
entered  on  a  warrant  of  attorney  will  be  set  aside,  and  the  cause  set 
down  for  trial,  on  motion  of  the  defendant,  when  it  appears  that  the 
motion  is  made  in  good  faith,  and  that,  prima  facie,  a  defense  exists,  if 
the  defendant  was  not  summoned  or  otherwise  legally  notified  of  the 
time  and  place  of  taking  such  judgment.* 

In  case  of  judgment  being  taken  by  authority  of  a  warrant  of  attor- 
ney, the  court  generally  requires  the  attorney  who  confesses  for  the 
defendant  to  sign  the  journal,  as  in  the  forms  hereafter  given. 

Interest  on  the  debt  must  be  calculated  to  the  day  judgment  is  entered, 
and  judgment  given  for  the  whole  amount. 

The  confession  of  itself  operates  as  a  release  of  errors  without  being 
ordered  in  the  judgment.' 

12  Lord  Raymond,  7GG,  850;  1  Salk.  87;  7  Mod.  93. 

2  Co.  Litt.  'y2b;  1  Vent.  310. 

3  1  Penn.  245;  6  S.  &  K.  296. 
*Codo,  sec.  5324. 

5  Knox  County  Bank  v.  Doty,  9  Ohio  St.  505. 
GQsborn  v.  Hawley,  19  Oiiio,  130. 

'  Marsden  v.  Soper,  11   Ohio  St.  503;  see  also  Cushman  v.  Welsh^  19  Ohio  St. 
53«. 
i^See  also  4  W.  L.  M.  110,  124. 
"Code,  sec.  5323. 


132  JOURNAL    ENTRIES.  [SEC.  5321- 

"WhEN    DEFENDANT    APPEARS    PERSONALLY — 

246.  (Sec.  5321.)     Jiulgmeiit  inhere  'petition  has  bcenjilecl. 
[lYile.] 

Now  came  the  plaintiff,  by  his  attorney,  and  also  personally 
came  the  defendant,  C.  D,;  and  with  the  assent  of  the  said 
plaintilf  the  said  C.  D.  confessed  in  open  court  that  he  is  justly 

indebted  to  said  plaintiff"  in  the  sum  of  $ ,*  as  claimed  iir 

the  petition. 

It  is  therefore  considered  by  the  court  that  the  plaintiff, 
A.  J3.,  recover  from  said  defendant  the  said  sum  of dol- 
lars, together  with  his  costs  herein  expended,  taxed  at  $ . 

247.  (Sec.  5322.)     Judgment  where  no  petition  has  been  fled. 
[Title.] 

As  in  last  to  *,  and  coyitinue:'] — as  evidenced  by  the  prom- 
issory note  of  said  C.  D.,  executed  by  him  on  the  day 

of ,  18 — ,  for  the  sum  of  $ ,  payable  to  the  said  plaint- 
iff six  months  after  the  date  thereof.  [Or  other  brief  state- 
ment.] 

It  is  therefore  considered,  etc.  [as  in  last.] 

When  defendant  appears  by  attorney — 

248.  (Sec.  5324.)     Judgment. 

[Title.] 

ISow  came  the  plaintiff,  by  his  attorney ;  also  came  O.  T., 
one  of  the  attorneys  of  this  court,  on  behalf  of  the  defend- 
ant, C.  D.,  and,  by  virtue  of  a  warrant  of  attorney  for  that 
purpose,  duly  executed  by  the  said  C.  B.,  and  now  produced 
to  the  court,  waived  the  issuing  and  service  of  process,  and, 
^with  the  assent  of  the  plaintiff,  confessed  that  the  said  C.  D. 

is  justly  indebted  to  the  said  plaintiff  in  the  sum  of 

dollars.  [Continue  as  from  *,  in  one  of  the  last  two  entries^  ac- 
cording to  circumstances.] 

[Signed,]  O.  T.,'     ■ 

Attorney  in  fact  for  C.  T). 

^  Signed  by  attorney.     See  above. 


-5325.]  GIVING   AND    ENTERING   JUDGMENT.  133 

CHAPTER  IV. 

MANNER  OF  (UVING  AND  ENTERING  JUDGMENT. 

Judgment  on  verdict — 

249.  (.Sec.  5326.)     For  money,  for  either  party. 

2.'i0.  (Sec.  5326.)     On  verdict  for  deiendant,  for  costs. 

2.')1.  (.Sec.  5327.)     On  special  verdict. 

252.  Motion  for  new  trial  overruled,  and  judgment  on  general  verdict. 
252a.  Same,  on  special  verdict. 

Judgment  on  the  pi.e.\dings  and  notwitustanding  vekdict — 

253.  (Sec.  5328.)     Judgment  on  the  pleadings  for  plaintiff  [or,  defendant]. 

254.  (Sec.  5328.)     Same — and  case  referred  to  take  an  account. 

255.  (Sec.  5328.)     Same — and  case  sent  to  jury  to  assess  damages. 

256.  (Sec.  5328.)     Judgment  for  plaintiff,  notwithstanding  verdict. 

257    (Sec.  5328.)     Same — when  damages  have  been  assessed  by  the  jury. 

258.  (Sec.  5328.)     Same — and  inquiry  of  damages  by  jury  ordered. 

259.  (Sec.  5328.)     .ludgment  for  defendant,  notwithstanding  verdict. 

Judgment  on  part  of  vkudkt  bking  kemitted — 

260.  Remittitur  of  part  of  verdict — motion  overruled,  and  judgment. 

261.  Order  for  new  trial,  unless,  etc.,  and  judgment 

Inquiuy  ov  da.magks,  after  judgment  by  the  court — 

262.  Verdict  on  assessment  of  damages. 

263.  Judgment  on  the  assessment. 

Judgment  on  verdict — 

When  a  tiial  by  jury  lias  been  had,  and  a  verdict  rendered,  three 
days  are  usually  allowed  for  the  losiug  party  to  move  for  a  new  trial. 
If  no  motion  is  made,  judgment  must  then  be  entered  by  the  clerk, 
in  conformity  to  the  verdict,  unless  the  verdict  is  special,  or  the  court 
order  the  case  to  be  reserved  for  future  argument  or  consideration.^ 

Where  the  verdict  is  special,  or  where  there  has  been  a  special  find- 
ing on  particular  questions  of  fact,  or  where  the  court  has  ordered  the 
case  to  be  reserved,  it  shall  order  what  judgment  shall  be  entered." 

If  a  motion  for  a  new  trial  be  made  and  overruled,  judgment  fol- 
low.s,  and  is  entered  by  the  clerk  as  a  matter  of  course. 

Whatever  may  be  the  amount  of  the  verdict,  the  plaintiff  is  entitled 

^  Code,  sec.  532G.  ^  Code,  sec.  5.327. 


134  JOURNAL   ENTRIES.  [SEC.   5326- 

to  judgment ;  but  as  to  costs,  if  the  recovery  be  less  than  one  hundred 
dollars,  judgment  for  the  plaintifF's  costs  can  not  be  rendered,  unless 
the  jury  have  found  the  amount  of  the  plaintiff's  claim  to  be  more  than 
one  hundred  dollars,  and  have  reduced  the  same,  by  the  allowance  of 
a  counterclaim  or  set-off,  to  less  than  one  hundred  dollars.^ 

In  such  case,  it  is  well  to  add  to  the  judgment  entry,  instead  of 
judgment  for  costs  as  follows : 

Onhr ;] 

And  the  plaintiff's  said  recovery  being  less  than  one  hun- 
dred dollars,  execution  is  awarded  against  each  party  for  his 
respective  costs. 

249.  (Sec.   5326.)     Judgment  on   verdict  for  money,  for   either 

jmrfy. 

[TUle.] 

The  jury  in  this  action,  having,  on  a  former  day  of  this 
term,  rendered  a  verdict  for  the ,  and  assessed  his  dam- 
ages at  $ ,  and  no  motion  for  a  new  trial  having  been 

made  : 

It  is  therefore  considered  by  the  court  that  the  said  

recover  from  the  said the  said  sum  of  dollars,  to- 
gether with  his  costs  herein  expended. 

250.  (Sec.  5326.)     Judgment,  on  verdict  for  defendant,  for  costs. 
[Title.] 

The  jury  in  this  action  having  on  a  former  day  of  this 
term,  rendered  a  verdict  for  the  defendant,  and  no  motion  for 
a  new  trial  having  been  made : 

It  is  therefore  considered  by  the  court  that  the  said  defend- 
ant go  hence  without  day,  and  recover  from  the  plaintiff  his 
costs  herein  expended. 

251.  (Sec.  5327.)     Judgment  on  special  verdict. 
[Title] 

The  jury  in  this  action  having,  on  a  former  day  of  this 
term,  rendered  a  special  verdict,  and  no  motion  for  a  new 
trial  having  been  made,  the  court  find  *  that  the  law  arising 

3  Brunauirh  v.  Worlev,  G  Ohio  Sf..  5"7.     See  sec.  5349. 


-5327.]  GIVING    AND    ENTERING    JUDGMENT.  135 

upon  the  facts  so  found  hy  tlio  jury  is  witli  the  plaintiff  [or, 

defendant],  and  that  the is  indebted  to in  the  sum. 

of doHars : 

It  is  therefore,  in  accordance  with  the  special  finding  and 
verdict  of  the  said  jury,  considered  by  the  court  that  the 

recover  from  the the  said  sum  of dollars  and 

his  costs  herein  expended  [or  such  other  judgment  as  is  given  by 
the  coarf'\. 

252.  Motion  for  vein  trial  overruled,  and  judgment  on  general 
verdict. 

[Tillc.'] 

This  cause  coinms:  on  for  hearini::,  on  the  motion  of  the 

to  set  aside  the  verdict,  and  for  a  new  trial  herein,  the 

court,  on  consideration  thereof,  overrule  the  same. 

It  is  therefore  considered  bv  the  court  that  the  said 


recover   from    the   said  the   said   sum   of dollars, 

as  heretofore,  by  the  verdict   of  the  jury,   found  due  him,    y 
with  interest  from  [the  first  day  of  the  term  of  the  verdict'],  to- 
gether with  his  costs  herein  expended. 

Or,  if  for  defendant ;] 

It  is  therefore  considered  by  the  court,  that  the  said  de- 
fendant go  hence  without  day,  and  recover  from  tlie  said 
plaintiff  his  costs  herein  expended. 

252(/.  3Iotion  for  neiv  trial  overruled,  and.  judgment  on  special 
verdict. 

[Title.'] 

And  now  this  cause  coming  on  for  hearing  on  the  motion  to 
set  aside  the  special  verdict  herein,  and  for  a  new  trial,  the 
court,  on  consideration  thereof,  overrule  the  same ;  and  the 
court  further  find  [conclude  as  from  *,  ifi  Entry  No.  251.] 

Judgment  on  the  pleadings  and  notwithstanding  verdict — 
Judgment  non  obstante  veredicto  at  common  law,  and  as  recognized  in 
Ohio  before  the  code,  was  given,  on  motion,  to  the  plaintiff,  when  the 
issue  presented  by  the  defense,  and,  by  the  verdict  of  the  jury,  found 
for  the  defendant,  was  not  sufficient  in  law  to  avoid  the  plaintiff's 


136  JOURNAL    EXTRIES.  [SEC.   5328- 

claim  ;  when  the  plea  of  the  defendant  was  bad  in  substance  and 
might  have  been  made  the  subject  of  demurrer  on  that  ground.^ 

It  could  only  be  rendered  for  the  plaintiff,  the  defendant's  corre- 
.sponding  remedy  being  arrest  of  judgment.^ 

At  common  law  the  judgment  was  interlocutory,  after  which  a  writ 
of  inquiry  was  executed,  and  the  final  judgment  signed  as  in  ordinary 
eases.^  So,  in  Ohio,  a  writ  of  inquiry  would  usually  issue  ;  but  if  the 
jury  had  sufficiently  passed  UY>on  the  whole  matter,  and  assessed  the 
plaintiff's  damages,  such  writ  was  not  required  to  issue,  and  judgment 
was  rendered  for  the  damages  assessed/ 

Section  5328  of  the  code  allows  either  party  to  have  judgment 
where,  upon  the  statements  in  the  pleadings,  he  is  entitled  by  law  to 
it,  notwithstanding  that  a  verdict  has  been  found  against  such  party. 
The  code  is  silent  as  to  how  the  damages  of  the  party  entitled  to  judg- 
ment shall  be  detei-mined  in  a  case  requiring  their  determination;  but 
it  would  probably  be  correct  practice  for  the  court  to  act  as  allowed  by 
section  5320  in  cases  of  default,  and  either  find  the  amount  due,  or 
refer  the  case  to  a  referee  or  master,  or  send  to  a  jury. 

253.  (Sec.  5328.)  Judgment  on   the  jjleadings  for  j^^ai'^t'ff  [or, 
defendant']. 

'  \Tmc:\ 

And  now  this  cause  being  heard  upon  the  pleadings  filed 
in  the  case,  and  the  motion  of  the  plaintiff  \or.,  defendant]  for 
judgment  thereon,  the  court  fiuds  that  said  plaintiff  [or,  de- 
fendant] is  entitled  to  a  judgment  upon  the  statements  in  the 
2:)leadings,*  and  that  the  defendant  is  indebted  to  plaint- 
iff in  the  sum  of dollars. 

It  is  therefore  considered  by  the  court  that  the  plaintiff  re- 
cover from  the  defendant  the  said  sum  of dollars,  to- 
gether with  his  costs  herein  expended. 

Or.^  if  for  defendant,  say-\ — that  the  defendant  go  hence 
without  day,  and  recover  from  the  plaintiff  his  costs  herein 
expended. 

1  Steph.  Comm.  GGO;  2  Tidd's  Pr.  922;    Sikes  v.  Tan  Dike,  17  Ohio,  454. 

2  Buckingham  v.  ilcCracken,  2  Ohio  St.  287;  Smith  v.  Smith,  4  Wend.  4G8. 

3  C.  L.  P.  A.  18-:2,  s.  145;  2  Chit.  Arch.  Prac.  by  Pren.  1483. 
*  Sikes  V.  Yan  Dike,  17  Ohio,  454. 


-5328.]  GIVING    AND    ENTERING   JUDGMENT.  137 

254.  (Sec.  5328.)     Judgment  on  the  pleading,  and  case  referred 

to  take  an  account. 

[Title,'] 

As  in  last  entry  to  *,  and  continue ;]  And  it  being  necessary 
tliat  an  account  should  be  taken  between  the  parties  before 
tlie  amount  due  can  be  ascertained,  it  is  now  ordered  that 
the  case  be  referred  for  the  taking  of  the  same  to  E.  F.,  as 
referee  [or  sag,  a  master  commissioner  of  this  court],  and 
that  he  report  to  this  court  without  unnecessary  dehiy. 

For  judgment  on  the  coming  in  of  the  report,  modify  Entry  No. 
237. 

255.  (Sec.  5328.)     Judgment  on  the  pleadings,  and  case  sent  to 

jury  to  assess  damages. 

[Title.] 

As  in  Entry  No.  253  to  *,  and  continue:] — and  is  entitled  to 
recover  his  damages  from  the  said  defendant.  And  it  is  or- 
dered that  the  case  be  sent  to  the  jury  to  ascertain  and  assess 
the  same. 

The  entry  of  verdict  on  the  above  assessment  may  be  as  in  Entry 
Ko.  262,  and  the  judgment  on  verdict  as  No.  263. 

256.  (Sec.  5328.)     Judgment  for  plaintiff'  notwithstanding  ver- 

dict. 
[Title.] 

After  entry  showing  verdict  for  defendant,  for  which  see  page 
56  or  57;  continue  :] 

And  thereupon  the  plaintiff"  moved  the  court  for  a  judg- 
ment upon  the  pleadings  notwithstandiug  the  said  verdict. 
And  the  court  being  of  opinion  that  the  plaintiff'  is  entitled 
to  a  judgment  upon  the  statements  in  the  pleadings,  grant 
the  said  motion,*  and  the  court  thereupon  further  find  that 

the  defendant  is  indebted  to  the  plaintiff'  in  the  sum  of 

dollars. 

It  is  therefore  considered  by  the  court  that  the  plaintiff  re- 
cover, etc. 


138  JOURNAL    ENTRIES.  [SEC.    5328- 

257.  (Sec.  5328.]     Same,  ivhen  damages  have  been  assesse.il  by  the. 

jury. 

{rule.'] 

As  in  JSo.  256,  to  *,  and  continue:'] — And  the  jun-  having 
assessed  the  phaintili"s  damages  at  $ : 

It  is  therefore  considered  that  the  plaintiff,  A.  B.,  recover 

from  the   defendant,  C.  D.,  the  said   sum   of  % and  his 

costs  herein  expended. 

258.  (Sec.  5328.)    Same,  and  inquiry  of  damages  by  jury  ordered. 
[Title.'] 

As  in  Entry  No.  256  to  *,  and  continue:] 

It  is  therefore  considered  by  the  court  that  the  said  plaint- 
iff recover  from  the  said  defendant  his  damages  sustained  by 
reason  of  the  premises.  And  on  motion  of  the  plaintiff  it  is 
ordered  that  the  case  be  sent  to  a  jury  to  ascertain  and  assess 
the  same. 

For  the  subsequent  entries  on  the  assessment  of  damages,  and  judg- 
ment for  the  amount  assessed,  use  Entries  No.  262  and  No.  263. 

259.  (Sec.  5328.)  Judgment  for  defendant  notwithstanding  verdict, 
[Title.] 

After  entry  showing  verdict  for  ])laintif,for  ivhich  see  pages  56 
and,  57,  continue:] — 

And  thereupon  the  defendant  moved  the  court  for  a  judg- 
ment npon  the  pleadings,  notwithstanding  the  said  verdict; 
and  the  court  being  of  opinion  that  the  defendant  is  entitled 
to  judgment  npon  the  statements  in  the  pleadings,  grant  the 
said  motion. 

It  is  therefore  considered  by  the  court  that  the  defendant, 
C.  D.,  go  hence  without  day,  and  recover  from  the  plaintiff, 
A.  B.,  his  costs  herein  expended. 

For  judgment  under  section  5329,  see  Entry  No.  210a. 

260.  Remittitur  of  jnirt  of  the  damacjes  found  in  a  verdict,  motion 

overruled,  and  judgment  for  balance.^ 
[Title.] 
This  cause  coming  on  to  be  heard  on  the  motion  to  set 

1  See  Durrell  v.  Bovd,  9  O.  St.  72. 


-5329.]  GIVING    AND    ENTERING    JUDGMENT.  139 

aside  the  verdict  and  for  a  new  trial,  and  the  court  being  of 
opinion  that  the  damages  assessed  by  the  jury  are   excessive 

to  the  amount  of  dollars,  *  and  the  plaintift'  here  in 

court  now  consenting  to  remit  the  excess  aforesaid,  thereu})on 

the  said  sum  of dollars  being  remitted  and  deducted 

from  the  said  verdict,  the  court  overrule  the  motion  for  a 
new  trial. 

It  is  therefore  considered  that  the  plaintiff,  A.  B.,  recover 
from  the  defendant,  C.  D.,  the  sum  of  dollars,  the  resi- 
due of  the  damages  by  the  said  jury  assessed,  together  with 
his  costs  herein  expended. 

261.  Order  for  nein  trial,  unless  remittitur  be  made ;  a)} d  judgment 
on  remittitur. 

[Title.] 

As  in  last  to  *,  and  coiitinuei] — the  court  order  that,  unless 

the  plaintift"  will  remit  from  the  verdict  the  said  sum  of  S , 

a  new  trial  be  granted  ;  but  that,  upon  said  remittitur  being 
made,  the  said  motion  be  overruled. 

And  thereupon  comes  the  said  plaintiff",  and  in  open  court 
consents  to  said  remittitur. 

It  is  therefore  considered,  etc.  [as  in  last  entry.'] 

Record — 

When  record  in  any  case  is  waived,  it  may  be  entered  on  the  jour- 
nal by  adding  to  the  judgment  or  entry  of  dismissal,  by  virtue  of  sec- 
tion 5337,  as  follows  :  "And  by  agreement  of  parties  no  record  of  this 
case  is  to  be  made."  Or,  in  a  proper  case,  by  simply  adding  "  with- 
out record." 

261a.  (Sec.  5334;  87  v.  236.)     Order  to  abbreviate  record. 

[Title.] 

Add  tc  final  entry :] 

And  it  IS  ordered  that  in  recording  this  case,  the  copies  of 
papers  attached  to  the  petition,  being  voluminous,  be  only 
described  therein  and  not  recorded  in  full. 

Inquiry  of  damages,  after  judgment  by  the  court — 

There  are  three  cases  under  the  code  in  which  a  jury  may  be  impan- 
eled simply  to  assess  damages,  after  the  right  to  recover  has  been  de- 
termined by  the  judgment  of  the  court: 


140  JOURNAL    ENTRIES.  [SEC.  5330- 

I.  Where  the  court  renders  judgment  for  plaintiif  by  default,  and 
sends  the  case  to  a  jury  for  the  assessment  of  damages,  under  section 
5320. 

II.  In  replevin,  where  the  court  renders  judgment  by  default,  and 
sends  the  case  to  a  jury  for  inquiry  of  damages,  under  section  5825. 

III.  Whei-e  judgment  is  rendered  by  the  court  for  the  plaintiff,  not- 
withstanding the  verdict,  and  the  case  sent  to  a  jury  for  the  assessment 
of  damages,  under  section  5328. 

In  all  of  these  cases,  the  entries  of  verdict  and  judgment  may  be  as 
follows : 

262.  Verdict  on  assessment  of  damages. 
[Title.] 

AikI  nov\,^  this  cause  came  ou  to  be  beard  upon  inquiry  of 
damages  for  the  plaintiff,  as  heretofore  ordered  by  the  court ; 
and  thereupon  came  the  following-named  persons  as  jurors, 
to  wit: 

1.  A.  B.  7.  E.  F. 

2;  C.  D.  8.  G.  H. 

etc.  .  etc. 

who  were  duly  impaneled  and  sworn  according  to  law. 

And  thereupon,  after  hearing  the  evidence,  argument,  and 
charge  of  the  court,  the  jury  retired  to  their  room,  in  charge 
of  the  sheriff,  for  deliberation. 

And  now  come  said  jury  in  open  court,  with  their  verdict 
in  writing,  signed  by  their  foreman,  and  say  : 

"  We,  the  jury,  upon  inquiry  of  damages  for  the  plaintiff 
in  this  action,  do  assess  the  same  against  the  defendant  at 
dollars.  [Signed,]  A.  B.,  Foreman."' 

263.  Judgment  on  the  assessment. 
[Title.] 

The  jury  in  this  action  having,  at  a  former  day  of  tliis 
court,  upon  an  inquiry  of  damages  for  the  plaintiff,  assessed 
the  same  against  the  defendant  at dollars. 

It  is  therefore  considered  by  the  court  that  the  plaintiff,  A. 

B.,  recover  from  the  defendant,  C.  I).,  the  said  sum  of 

dollars,  so  found  due,  together  with  his  costs  herein  expended. 


-5340.]        JUDGMENT    FOR   COSTS    AND   ITS    ENFORCEMENT.  141 


CHAPTER  V. 

JUDGMENT  FOR  COSTS,  AND  ITS  ENFORCEMENT. 

Seotrity  fou  costs — 

264.   (Sec.  5340.)     Order  to  increase  deposit. 

20.').  (Sec.  .5341.)     Ortler  for  pbiintiif  to  give. 

266.  (Sec.  5343.)     Order  for  additional. 

267.  Action  dismissed  on  failure,  etc. 

268.  (Sec.  5344.)     Judgment  against  surety. 

Retax.\tiox  of  cost.s — 

269.  Order  for. 

A  general  and  standing  order  of  the  Court  of  Common  Pleas,  direct- 
ing the  clerk  to  issue  execution  for  his  own  benefit  and  at  the  instance 
of....^uy  person  entitled  to  costs,  will  authorize  the  clerk  without  any 
special  order,  to  issue  such  execution.' 

The  recovery  of  costs  by  one  party  against  the  other  is  unknown  at 
common  law.  Each  party  there  paid  his  own  costs,  and  was  presumed 
to  pay  each  portion  as  it  became  due.  Recovery  is  given  only  by  stat- 
ute." 

As  between  the  clerk  and  the  party,  the  party  is  at  all  times  liable 
to  the  clerk  for  his,  own  costs,  whether  he  be  adjudged  to  recover  from 
the  adverse  party  or  not.  And  even  though  a  case  be  dismissed  at  the 
cost  of  one  party,  the  other  is  not  discharged  from  his  liability  to  the 
clerk  for  his  own  costs  ;  his  remedy  is  against  the  adverse  party  onlv. 
When  a  case  is  dismissed  for  want  of  jurisdiction  of  the  subject-matter, 
the  court  can  only  strike  the  case  from  the  docket,  and  can  render  no 
judgment  for  costs.^ 

Security  for  costs — 

264.     Sec.  5340 ;  86  O.  L.  353.)     Order  to  increase  deposit. 
[Title:] 
On  motion  of  the  defendant,  and  the  court  being  satisfied 

1  Elliott  r.  Ellery,  11  Ohio,  30G.     For  the  order  adjudged  sufficient,  see  page 
152,  Executions. 
'  P'arrier  v.  Cains,  5  Ohio,  45. 
'Norton  r.  :McLeary,  8  Ohio  St.  20-3. 


142  JOURNAL    ENTRIES.  [SEC.  5341- 

that  the  deposit  of  money  made  with  the  clerk  of  this  court 
as  security  for  costs  in  this  case  is  uot  sufficient  therefor,  it  is 

hereby  ordered  *  that  said  sum  he  increased  to dollars. 

And  that  in  default  thereof  for days,  the  case  he  dis- 
missed. 

Or  .*  j — that  the  plaintiffbe  required  to  give  personal  security 

for  said  costs  within days,  and  that  in  default  thereof 

the  case  he  dismissed. 

265.  Sec.  5341.) .    Order  for  ■plaintiff  to  give  security  for  costs. 
I'litle.] 

This  cause  being  heard  upon  the  motion  of  defendant  to 
compel  the  plaintiff  to  give  security  for  costs,  the  court,  on 
consideration,  grants  the  same  ;  and  orders  that  unless  plaint- 
iff shall  give  said  security  within days  from  this  date, 

the  action  be  dismissed. 

266.  (Sec.  5343.)      Order  for  adiliti.onal  security. 
ITitle.-] 

This  cause  being  heard  on  the  motion  to  require  the  plaint- 
iff to  give  additional  security  for  costs,  the  court,  on  consid- 
eration, grants  the  same,  and  orders  that  this  action  be  dis- 
missed, unless  the  security  be  given  within days. 

267.  Action  dismissed  on  failure,  etc. 
[7itle.-] 

The  plaintiff  having  failed  to  give  the  security  [or,  addi- 
tional security]  for  costs  heretofore  required  by  order  of  court, 
this  action  is  now,  on  motion,  dismissed  at  plaintiff's  cost 
[without  prejudice  to  a  future  action.]^ 

268.  (Sec.  5344.)     Judgment  against  surety  for  costs. 
[Tdle.] 

This  cause  coming  on  for  hearing  on  the  motion  of  the  de- 
fendant [o/',  other  person  having  the  right  to  the  costs']  for  judg- 
ment against  the  surety  for  costs  in  this  action,  the  court  finds 
that  the  said  costs  still  remain  due  and  unpaid,  to  wit,  to  the 

1  May  be  added  bj',  see  5314,  5. 


-5353.]  NEW    TRIAL,  AND    OTHER   RELIEF,    ETC,  143 

clerk  of  this  court  the  sum  of dollars,  and  to  this  de- 
fendant the  sum  of dollars;  and  that  M.  J.,  the  surety 

herein,  is  liable  therefor.     And  the  said  M.  J.  having  been 
duly  notified  of  tliis  motion  : 

It  is  therefore  considered  by  the  court  that  the  said  C.  D. 
recover  from  the  said  M.  J.  the  said  sums  above  found  due, 
for  the  use  and  benefit  of  himself  and  the  said  clerk;  and 
execution  is  awarded  therefor,  as  well  as  for  the  costs  in  this 
behalf. 

Retaxation — 

This  order  is  granted  for  good  cause,  on  motion  of  either  party.  The 
order  sometimes  directs  how  the  costs  shall  be  taxed. 

269.   Order  for  retaxation. 

[Title.'] 

On  motion  of  the  defendant,  by  his  attorney,  it  is  ordered 
that  the  clerk  retax  the  costs  in  this  case,  charging  to  the 
defendant  the  costs  of  his  own  witnesses  only,  and  to  the 
plaintiff  all  other  costs ;  and  that  execution  issue  accordingly. 


CHAPTER  VI. 

NEW  TRIAL,  AND  OTHER  RELIEF  AFTER  JUDGMENT. 

270.  (Sec.  5354,  1.)     Judgment  for  a  new  trial. 
27L  (Sec.  5.354.)     Judgment  adverse  to  new  trial. 

272.  (Sec.  5354,  3.)     Judgment  vacated  on  motion  after  the  term,  for  mis- 

take, etc. 

273.  (Sec.  5354,  4,  etc.)     Judgment  vacating  former  judgment  for  fraud, 

etc. 

274.  (Sec.  5355.)     New  trial    granted   to   defendant  constructively  sum- 

moned. 

A  judgment  may  be  vacated  after  the  term  has  passed,  on  motion,^ 
or  on  petition.^  If  done  by  motion,  it  is  a  part  of  the  proceeding  of  the 
original  case. 

^Code,  sec.  5357. 

2  Code,  sec.  5309,  and  5358. 

10 


144  JOURNAL    ENTRIES.  [SEC.  5354- 

If  by  petition,  it  is  not  of  itself  a  civil  action,  hut  a  special  proceed- 
ing in  an  action  after  judgment,  and  subject  to  review  only  on  error.' 
The  only  thing  to  be  done  in  the  original  case  is  to  refer  on  the  appear- 
ance docket  from  the  original  case  to  the  new  one  setting  aside  the 
judgment.  And  the  latter  case  should  be  recorded  as  a  part  of  the 
original. 

270.  (Sec.  5-354,  1,  82  0.  L   31.)     Jmlginent  for  a  neto  trial,  in 

a  ease  ivhere  final  judgment  has  been  entered.''^ 

[Title.] 

This  cause  now  coming  on  for  hearing  upon  the  petition 
to  vacate  the  judgment  heretofore   rendered  by  this  court, 

and  for  a  new  trial,  in  case  numbered ,  wherein  the  said 

A.  B.  is  plaintiiF  and  the  said  C.  D.  defendant,  and  the  evi- 
dence, the  court  find  that  the  grounds  for  a  new  trial  set  up 
in  said  petition  are  such  as  could  not  with  reasonable  dili- 
gence have  been  discovered  at  the  term  wlien  the  verdict  [or, 
report,  or,  decision]  was  rendered  [or,  made],  and  that,  by 
reason  of  said  facts,  the  plaintiff  herein  is  entitled  to  have 
the  verdict  rendered  [or,  report,  or  decision  made]  in  said 
case,  and  the  judgment  thereon,  set  aside. 

And  the  court  further  finding  that  the  plaintiff  herein  has 
a  valid  defense  ^  [or,  cause  of  action]  in  said  case,  it  is  there- 
fore considered  that  the  said  verdict  [or,  report,  or,  decision] 
and  the  judgment  in  the  case  above  named  be,  and  the 
same  hereby  are  vacated  and  set  aside,  and  a  new  trial  of  the 
cause  is  granted. 

[Add  any  order  the  court  makes  as  to  costs.] 

271.  (Sec.  5354,  82  O.  L.  34.)     Judgment  adverse  to  new  trial. 
[Title.] 

[  Use  entry  No.  196a.] 

For  entry  under  subdivision  2  of  sec.  5354,  see  Entry  No.  274. 

>  Taylor  v.  Fitch,  12  Ohio  St.  169. 

'If  final  judgment  has  not  been  entered,  use  Entry  No.  196. 

3  Code,  sec.  5360.    See  also  Watson  v.  Paine,  25  Ohio  St.  340. 


-5355]  NEW  TRIAL  AND  OTHER  RELIEF,  ETC.  145 

272.  (Sec.  5354,  3,  82  O.  L.  34.)     Judgment  vacated,  on  motion, 

after  the  term,  for  mistake  of  clerk,  etc. 

[Title.] 

This  cause  being  heard  on  the  motion  of  the  defendant  [or, 
plaintiff]  to  vacate  the  judgment  rendered  herein  at  a  former 
term  of  this  court,  to  wit,  on  January  4,  1871,  the  court,  on 
•consideration,  find  that  [here  state  cause  of  vacating  judgment], 
and  that  the  said  has  a  valid  defense'  [or,  cause  of  ac- 
tion]. 

It  is  therefore  ordered  by  the  court  that  the  said  judgment 
be,  and  the  same  hereby  is,  vacated,  and  a  new  trial  is 
granted. 

273.  (Sec.  5354,  4,  5,  6,  7,  8,  9,  and  10,  82  O.  L.  34,  and  sec. 

5358.)  Judgment  vacating  former  judgment 
for  fraud,  etc. 

[Title.] 

This  cause  now  coming  on  for  liearing  upon  the  petition  to 
vacate  the  judgment  heretofore  rendered  in  this  court  in  case 

numbered ,  wherein  the  said  A.  B.  was  pUiintifF  and  the 

said  C.  D.  defendant,  and  the  evidence,  the  court  find  that  [state 
one  oj  the  causes  named  in  one  of  above  subdidsions],  and  that 
the  plaintiff  herein,  by  reason  thereof,  is  entitled  to  have  the 
judgment  in  said  case  vacated.  And  the  court  further  find- 
ing that  this  plaintiff  has  a  valid  defense '  [or,  cause  of  action] 
therein,  it  is  therefore  ordered  that  the  judgment  in  the  case 
above  named  be  and  it  hereby  is  vacated,  and  a  new  trial 
of  the  cause  is  granted.^ 

[Add  any  order  the  court  makes  as  to  costs^ 

274.  (Sec.  5355.)     New  trial  granted  to  defendant  constructively 

summoned. 
[Title:] 

Now  come  the  parties  [or,  comes  the  defendant  herein],  and 
thereupon   [due  notice  having  been  given  to  plaintiff],  this 

1  Code,  sec.  5360.     See  also  Watson  v.  Paine,  25  Ohio  St.  340. 

^  "Where  a  judgment  is  vacated,  on  petition,  under  the  code,  sec.  536  (5358),  a 
new  trial  must  be  ordered.  Whitehead  v.  Post,  Logan  Common  Pleas,  1861,  3 
W.  L.  M.  195.     See  this  case  for  a  full  construction  of  sec.  536  (sec.  5358). 


146  JOURNAL    ENTRIES,  [SEC.  5366- 

cause  being  heard  upon  the  motion  to  open  the  judgment 
heretofore  rendered  in  the  action,  the  court  find  that  no  otlier- 
service  was  made  in  the  case  than  by  publication  in  a  news- 
paper; and  being  satisfied  that  during  the  pendency  of  the- 
action  the  said  defendant  had  no  actual  notice  thereof,  and 
that  he  has  a  valid  defense/  the  court  therefore  order  that 
the  said  judgment  be,  and  the  same  hereby  is,  set  aside  [upon 
payment  by  the  defendant  of  all  costs  accrued  herein],  and 
the  answer  now  offered  to  the  court  is  received  and  filed. 

For  injunction  proceedings,  provided  for  in  section  5361,  see  subject,, 
Injunction. 


CHAPTER  VII. 
REVIVOK  OF,  AND  NEW  PARTIES  TO  JUDGMENT: 

New  party  to  a  judgment — 

275.  (Sec.  5366.)     Judgment  making  person  not  originally  served  party  to. 

a  judgment. 

Revivor  of  judgment,  dormant  by  lapse  of  time — 

276.  (Sec.  5367.)     Conditional  order,  on  motion  filed. 

277.  (Sec.  5367.)     Same,  when  payments  have  been  made. 

278.  (Sec.  5367.)     Final  order,  on  motion. 

279.  (Sec.  5367.)     Final  order,  when  payments  have  been  made-.. 

280.  (Sec.  5367.)     Judgment  of  revivor  on  petition  filed. 

Eevivor,  when  party  dies  after  judgment  and  before  satisfaction — 

281.  (Set-.  5309.)     Representative  madt;  party,  on  petition  filed. 
281a.  (Sec.  5369.)     Same,  on  motion. 

282.  (Sec.  5369.)     Conditional  order  of  revivor. 

283.  (Sec.  5369.)     Final  order. 

283fl.  (Sec.  5369.)     Revivor  by  consent. 

IsTeav  party  to  a  judgment — 

275.  (Sec.  5366.)     Jiulfjmevl  waking  j^erson  not  originally  serced' 
j)arty  to  a  judgment. 

ITiile.'] 

Finding,  I.,  IL,  or  III.,  page  99,  or  if  by  default  Finding  1  V., 
page  100,  and  continue:] — and  further  find  that  this  defendant 

1  Bv  sec.  5360. 


-5367.]  REVIVOR    OF    JUDGMENT,  ETC.  147 

is  jointly  indebted  upon  tlie  contract  [or,  other  instrument  in 
ivrithig]  set  fortli  in  the  petition  with  tlie  said  E.  F.,  in  man- 
ner and  form  as  in  said  petition  dcchired. 

It  is  therefore  considered  that  the  said  C.  D.  be  made  a 
party  to  the  judgment  aforesaid  rendered  against  the  said 

E.  F.,  in  case  Xo, of  this  court,  to  wit,  for  the  sum  of 

dollars,  with  interest  from  the  day  of ,  18 — , 

and  costs  of  suit ;  and  that  the  said  A.  B.,  upon  the  same  judg- 
ment, have  his  execution  against  the  said  C.  D. ;  and  that  he 
also  recover  from  the  said  C.  D.  his  costs  in  this  behalf  ex- 
pended. 

Kevivor  of  judgment,  dormant  by  lapse  of  time — 

Judgments  having  become  dormant  were,  before  the  code,  revived 
by  the  writ  of  scire  facias;  and,  by  analogy,  the  decisions  of  the  Su- 
preme Court  under  those  statutes  may,  to  some  extent,  be  applied  to 
revivor  under  the  code. 

Under  the  statute  (3  Chase,  1684),  the  Supreme  Court  held  that  the 
revivor  was  only  a  continuation  of  the  former  suit,  and  not  an  original 
proceeding.  That  if  the  defendant  made  default,  and  no  payments 
appeared  upon  the  record,  it  is  the  duty  of  the  court  to  award  execu- 
tion for  the  amount  of  the  original  judgment.' 

Under  the  code,  it  is  probably  the  correct  practice  to  revive  the  judg- 
ment as  originally  rendered,  and  not  to  calculate  interest  to  the  term 
when  the  revivor  is  made. 

If  payments  have  been  made  on  the  original  judgment,  they  should 
l)e  found  in  the  order  of  revivor,  with  their  times  and  amounts. 

276.  (Sec.  5367.)     Conditional  order  of  revivor,  on  motion  filed. 

[TiileP^ 

ISTow  comes  the  plaintiif  herein,  and  on  his  motion,  and  it 
appearing  to  the  court  that  the  judgment  heretofore  rendered 

in  this  action,  to  wit,  at  the term,  18 — ,  for  the  sum  of 

$ ,  with  interest  and  costs,  has  become  dormant  by  lapse 

of  time,*  and  still  remains  wholly  unpaid,  it  is  ordered  that 
said  judgment  be  revived,  unless  sufficient  cause  be  shown 

1  Wolf  V.  Pounsford,  4  Ohio,  397. 


148  JOURNAL    ENTRIES.  [SEC.  5367- 

against  the  sanie  within days^  after  the  service  of  this 

order  upon  the  said  defendant. 

277.  (Sec.  5367.)      Conditional  order  of  rerivor  lohcn  j^ayments- 

have  been  made. 

[Title.] 

As  in  last  to  ^,  and  coyitimte :] — but  that  certain  payments- 
have  been  made  on  said  judgment,  to  wit,  the  sum  of  $ , 

on  the day  of ,  18 — ,  and  the  sum  of  $ ,  on  the 

day  of ,  18 — ,  and  that  the  balance  still  remains  un- 
paid; it  is  therefore  ordered  that  said  judgment  be  revived^ 

unless  sufficient  cause  be  shown  against  the  same  within 

days  after  the  service  of  this  order  upon  said  defendant. 

278.  (Sec.  5367.)     Filial  order  of  revivor,  on  motion. 
[Title.} 

Now  comes  the  said  plaintiff,  and  the  conditional  order  of 
revivor  herein  having  been  duly  served  upon  the  said  defend- 
ant, and  the  said  judgment  still  remaining  unsatisfied,  and 
no  [or,  no  sufficient]  cause  being  shown  why  it  should  not  be 
revived : 

It  is  therefore  ordered    that  the  said  judgment,   to   wit, 

rendered  in  this  action  at  the term,  a.  d.  18 — ,  for  the 

sum  of  § ,  with  interest  from  the day  of ,  18 — ^ 

and  § costs  of  suit,  stand  revived ;  and  execution  is  allowed 

to  issue  accordingly,  and  also  for  the  costs  in  this  behalf  ex- 
pended. 

279.  (Sec.  5367.)     Final  order  lohen  jiayments  have  been  made. 
[Title.'] 

IlTow  comes  the  said  plaintiff,  and  the  conditional  order  of 
revivor  herein  having  been  duly  served  upon  the  said  defend- 
ant, and  it  further  appearing  that  on  the day  of , 

18 — ,  there  was  paid  on  said  judgment  the  sum  of  ^ ; 

also,  that  on  the  day  of ,  18 — ,  there  was  further 

paid  the  sum  of  § ,  and  that  the  balance  remains  due  and 

1  By  sec.  5152  the  service  upon  the  order  will  be  made  in  the  same  manner, 
and  returned  in  the  same  time  as  a  summons,  which  time  of  return,  by  sec.  5039, 
is  the  second  Monday  after  its  issue.  Then  the  time  for  showing  cause  should 
be  placed  far  enough  ahead  to  p;ive  reasonable  time  for  defendant  to  appear. 


5369.]  REVIVOR    OF    JUDGMENT,    ETC.  1  i? 

unsatisfied,  and  no  [or,  no  sufficient]  cause  being  shown  why 
said  judgment  should  not  bo  revived  : 

It  is  therefore  ordered  that  said  judgment,  to  wit,  rendered 

in  this  action,  at  the term,  a.  d.  18 — ,  of  this  court,  for 

the  sum  of  $ ,  with  interest  from  the  day  of , 

18 — ,  and  ^ ,  costs  of  suit,  do  stand  revived;  but  that  the 

payments  above  set  forth  be  credited  upon  said  judgment,  in 
the  manner  prescribed  by  law.  And  execution  is  allowed  to 
issae  accordingly,  as  well  as  for  the  costs  in  this  behalf  ex- 
pended. 

280.  (Sec.  5367.)     Judgment  of  revivor  on  petition  filed. 

[Title.'] 

This  cause  now  coming  on  for  hearing  on  the  petition  for  a 
revivor  of  the  judgment  formerly  rendered  in  case  numbered 

in  the  [name  court\  wherein  the  Baid  A.  B.  was  plaintiff 

and  C.  D.  defendant,  and  the  said  defendant  having  been  duly 
served  with  summons  herein,  and  no  [or,  no  sufficient]  cause 
being  shown  why  the  said  judgment  should  not  be  revived: 

It  is  therefore  considered  by  the  court  that  the  said  judg- 
ment, to  wit,  rendered  in  case  Xo. in  this  court,  at  the 

term,  18 — ,  in  favor  of  this  plaintiff  and  against  this  de- 
fendant for  dollars,  wdth  interest  from  the day  of 

,  18 — ,  and  ^ costs  of  suit,  do  stand  revived. 

It  is  further  considered  that  the  plaintiff  recover  from  the 
defendant  his  costs  herein  expended.  For  all  of  which  exe- 
cution is  awarded. 

Revivor,  when  party  dies  after  judgment  and  before  satis- 
faction. 

In  this  case  a  judgment  may  be  revived  by  sec.  5369.  as 
amended,  82  O.  L.  34. 

1.  By  the  representative,  real  or  personal  or  both,  being 
made  parties  to  the  judgment  by  action  brought  for  that  pur- 
pose. 

2.  By  such  representatives  being  made  parties  to  the  judg- 
ment in  the  same  manner  as  is  prescribed  for  the  revival  of 
actions  before  judgment. 


149a  JOURNAL  ENTRIES.  [SEC.  OoG9- 

The  manner  prescribed  for  making  the  representatives  parties  to 
the  action  before  judgment  is  found  in  sees.  5149,  5152,  and  is 

a.  By  allowance  on  motion,  sec.  5149. 

b.  By   supplemental    pleadings     naming  the    representatives,  and 

service,  sec.  5149. 

c.  By  conditional  and  final  oi-der  of  revivor,  sees.  5150.  5152. 

d.  B}''  ;i  consent  order  of  n  vivoi-,  sec.  5152. 

The  entries  in  the  above  eases  will  be  given  successively. 

281.  (Sec.  5369,  82  0.  L.  34.)  Representatives  made  parties  on 
petition  filed. 

[  Title.'] 

This  cause  now  coming  on  for  hearing  on   the  petition   for 

H  revivor  of  the  judgment  rendered  in  case  numhei'ed in 

this  court,  wherein  A.  B.  was  plaintiff  and  0.  D.  defendant 

for  the  sura  of dollars  and  costs  of  suit,  and  it  being 

shown  to  the  court  that  said  judgment  is  still  unsatistiod.  and 
the  defendant  has  died  since  its  rendition,  and  that  E.  F.,  the 
defendant  in  this  action,  is  the  duly  appointe  1  ami  qualified 
executor  ['  r  otiier  representative']  of  the  said  C.  D.,  and  that  ho 
has  been  duly  served  with  summons  herein,  and  no  [or,  no 
sutKcient]  cause  being  shown  to  the  contrary,  it  is  tiierefore 
ordered  tluit  the  said  E.  F.  executor  as  aforesaid  be,  and  he 
hereby  is,  made  party  defendant  to  the  judgment  aforesaid, 
and  execution  is  awarded  against  him ;  and  it  is  ordered  that 
lie  pay  the  cost  of  this  action. 

281a.  (Sec.  5369,  82  0.  L.  34.)  Representative  nuv/e  party  to 
judgment,  on  motion.^ 

\_Title.'\ 

]^ow  comes  E.  F.  and  suggests  to  the  court  the  death  of 
A.  B.,  the  plaintiii"  [or,  C.  D.,  the  defendant]  herein,  since  the 
rendition  of  the  judgment,  and  that  he  is  the  duly  appointed 
and  qualified  administrator  [or,  other  representative]  of  the  said 

,  and  moves  the  court  for  leave  to  become  a  partj'  to  the 

judgment;  and  the  court  finding  the  suggestion  to  be  true, 
grant  said  motion  ;  and  said  E.  F.,  administrator  as  aforesaid, 
is  accordingly  made  a  party  to  the  said  judgment  [and  execu- 
tion is  awarded  in  his  favor.] 

'As  by  sec.  5149. 


-.5300]  KEVIVOR  OF  JUDGMENT.  150 

Probably  the  representatives  may  be  made  parties  by  supple- 
HTtiental  pleadings,  as  provided  for  in  sec.  5149,  but  as  yileadings 
will  seldom  be  filed  after  judgment  no  forms  are  given. 


:282.  (Sec.  5369,  82  O.  L.  34.)  Conditional  order  of  revivor — 
party  (I'liny  after  jiulgment} 

[Title.] 

Now  comes  R.  W.  [o?-,  the  plaiiitirt],  and  suggests  to  the 
•court  that  the  plaintitf  [or,  the  defendant]  herein  has  died 
since  the  rendition  of  the  judgment  in  the  action,  and  that  he, 
the  said  R.  W.  [or,  that  M.  N.]  has  been  duly  appointed  and 
qualified  as  the  executor  of  the  last  Avill  and  testament  of  the 
said  plaintiff  [or,  defendant];  and  the  court  being  satisfied 
thereof,  and  that  said  judgment  remains  unsatisfied,  now,  on 
motion  of  the  said  R.  W,  [or,  i)!aintift"],  it  is  oi-dered  that  he 
[or,  the  said  M.  N.],  as  sucli  executor,  be  made  party  plaintiff 
[or,  defendant],  instead  of  the  said  A.  ]>.  [or,  C.  D.],  deceased, 
to  the  judgment  aforesaid,  to  wit,  rendered  in  this  action  at 

tlie term,  A.  D.  18 — ,  of  this  court,  for  the  sum  of  % 

damages,  with  interest  from  the day  of ,  a.  d.  18 — , 

and    $ ,    costs   ot  suit,  nidess   sufiicient  cause  be    shown 

against  said  revivor  within  days^  after  service  of  this  or- 
der upon  the  said  defendant  [or,  the  said  M.  i^.,  executor]. 


283.  (Sec.  5369,  82  0.  L.  34.)  Final  order  of  reviror — paiiy 
dying  after  judgment. 

[Title.] 

Now  comes  the  said  R.  W.  [or,  plaintiff],  and  the  condi- 
tional order  of  revivor  herein  having  been  duly  served  upon 
the  said  defendant  [or,  M.  jST.],  and  said  judgment  still  re- 
maining unsatisfied,  and  no  [or,  no  sufficient]  cause  being 
shown  why  it  should  not  be  revived,  it  is  now  ordered  that 
the  said  R.  W.  [or,  M.  X.],  administrator  as  aforesaid,  be,  and 
he  hereby  is,  made  party  plaintiff  [or,  defendant],  instead  of 
the  said  A.  B.  [or,  C.  D.],  deceased,  to  said  judgment,  to  wit, 

iSee  sees.  5150  and  5151.  ^See  note  1.  puL-e  1-IS. 


150a  JOURNAL  ENTRIES.  [SEC.  5369- 

rendered  in  this  action  at  the  term,  a.  d.  18 — ,  of  this 

court,  for  the  sum  of  $ ,  with  interest  from  the duy 

of ,    A.    D.    18 — ,    and  costs    of  suit;    and    execution    is 

awarded  accordingly,  and  also  for  the  costs  in  this  behalf  ex- 
pended. 

283a.  (Sec.  5369,  82  O.  L.  34.)  Beoicor  of  judgment  by  con- 
sent. 

[Title.'] 

Now  comes  the  plaintiff  and  suggests  to  the  court  that  tlie 
defendant,  against  whom  judgment  was  rendered  herein,  has 
(lied,  and  that  the  judgment  remains  unsatisfied,  and  also 
that  E.  F.  has  been  duly  appointed  and  qualified  as  executor 
of  said  defendant.  And  the  court  being  fully  satisfied  thereof 
and  the  said  E.  F.,  executor  as  aforesaid,  consenting,  it  is 
liereby,  on  motion  of  the  said  plaintiff,  ordered  that  the  judg- 
ment stand  revived  against  the  said  E.  F.,  executor  as  afore- 
said, and  execution  is  awarded  accordingly. 


-5371.] 


EXECUTION   AGAINST   THE    PROPERTY. 


151 


DIYISIOK"  V. — Enforcement  of  Judgment. 

Chapter  I.     Execution. 

II.     Proceedings  in  aid  of  execution. 


CHAPTER  I. 

EXECUTION. 

Subdivision  II.  Execution  ag.\inst  propertt. 

III.  Exemption  from  execution. 

V.  Execution  against  the  person. 

VI.  Privilege  from  arke.st. 


SUBDIVISION  II. — Execution  against  property. 

STANDING    ORDER    FOR    EXECUTION    FOR    COSTS. 

284.  Leave  for  sheriff  to  amend  his  return. 

285.  (Sec.  5387.)     Order  to  sell  chattels  at  private  sale. 

Appraisement  and  sale  of  lands  and  tenements — 

286.  (Sec.  5394, )     German  advertisement  dispensed  with. 

287.  (Sec.  5394.)     Advertisement  in  Bohemian  paper  ordered. 

288.  (Sec.  539S.)     Decree  of  confirmation — order  for  deed  and  distribu- 

tion. 

289.  (Sec.  5399.)     Order  for  master  to  convey. 

290.  (Sec.  5404.)     Order  to  sell  on  premises. 

291.  (Sec.  5407.)     Order  for  succeeding  sheriff  to  make  deed. 

292.  (Sec.  5412.)     Vacating  satisfaction  of  judgment. 

293.  (Sec.  5413.)     Same — in  favor  of  officer. 

294.  Order  for  new  appraisement. 

295.  (Sec.  5416.)     Same — after  land  being  twice  offered. 


152  JOURNAL    ENTRIES.  [SEC.  5372- 

298.  (Sec.  5416.)     Order  directing  sale  for  certain  amount. 
298.  (Sec.  5438.)     Re-appraisement  of  homestead  ordered. 


An  execution  is  j)roperly  defined  to  be  "  the  obtaining  of  actual  pos- 
session of  auy  thing  acquii-ed  by  judgment  at  law,"  aud  necessarily 
goes  on  all  fiual  judgments.  There  may  be  special  cases  requiring 
special  executions,  but  in  ordinary  cases  the  right  to  have  the  u.sual 
execution  follows  every  judgment  as  of  course.^ 

An  execution  is  deemed  a  process  of  the  court,  and  is  issued  l)v  the 
clerk. ^  And  Avhen  the  clerk  affixes  the  seal  to  the  process,  aud  issues 
it  on  the  a})j)lication  of  a  suitor,  it  is  the  process  of  the  court  or  the 
law,  not  that  of  the  clerk,  and  the  order  of  the  court  for  its  issue  will 
be  presumed.^  The  fact  of  the  writ  being  issued  presupposes  the 
order,  and  no  other  proof  of  the  execution  having  been  awarded  is 
necessary.* 

It  is  therefore  not  necessary  to  annex  to  the  judgment  entry  an  order 
awarding  execution. 

But,  in  the  case  of  the  clerk's  costs,  section  1321  provides  that  he 
"may,  for  his  own  benefit,  or  shall,  at  the  instance  of  any  person  en- 
titled to  fees  in  the  bill  of  costs  taxed  against  either  party,  and  by  order 
of  the  court,  issue  against  the  party,  etc."  But  the  supreme  court,  in 
the  case  of  Elliott  v.  Ellery,  11  Ohio,  30G,  decided  that  a  s])ecial 
award  in  each  case  was  not  necessary  where  thei'e  was  a  standing  order 
for  execution. 

The  standing  order  adjudged  to  be  sufficient  was  as  follows : 

STANDING   ORDER   FOR   EXECUTION    FOR   COSTS. 

Ordered,  by  the  court,  that,  in  all  cases  where  the  party  recovering 
judgment  in  this  court  shall  neglect  to  sue  out  execution  immediately; 
or,  after  execution  shall  have  been  returned  without  satisfaction  of 
costs ;  or,  where  costs  are  adjudged  against  either  party  on  continu- 
ances, amendments,  or  any  special  rule,  the  clerk  may,  for  his  own 
benefit;  or  at  the  instance  of  auy  person  entitled  to  fees  in  the  bill  of 
costs,  issue  execution  against  the  party  indebted  to  such  clerk  or  other 
person,  for  such  fees,  whether  plaintiff  or  defendant,  at  any  time  after 
the  expiration  of  the  time  given  for  the  payment  of  the  same,  agree- 
ably to  the  act  regulating  the  taxation  aud  collection  of  costs ;  and 
this  is  made  a  standing  order  of  this  court. 

1  Darby  v.  Carson,  9  Ohio,  149.  =>  Code,  sec.  5372. 

^Earl's  Lessee  v.  Shoulder,  6  Ohio,  409. 


-5387.]  EXECUTION    AGAINST    PROPERTY.  loS 

Au  executiou  will  be  set  aside,  on  motion,  when  issued  upjn  a  dor- 
mant judgment,*  or  if  improvidently  issued.-  It  may  also  be  amended 
when  it  mistakes  the  amount  of  the  judgment.' 

A  sheriff's  return  upon  an  execution  may,  by  leave  of  court,  within 
a  reasonable  time  in  the  discretion  of  the  court,  be  amended.' 

284.  Leave  for  sheriff'  (o  amend  his  return. 
[Title.-] 

Xow  comes  G.  H.,  sberitf  of  this  court,  and  asks  leave  to- 
amend  Lis  return  on  the  execution  issued  in  this  action. 
And  the  court  being  satisfied  of  the  propriety  thereof,  grants 
the  same,  and  allows  said  sheriff  to  file  an  amended  return. 

285.  (Sec.  5387.)      Order  to  sell  goods  and  chattels  at   jyrivafe- 

sale. 
[Title.] 
This  cause  coming  on  for  hearing  on   motion  of  the 


to  sell  at  private  sale,  etc.,  on  consideration  thereof,  and  for 
good  cause  shown,  it  is  ordered  that  the  sheriff  cause  the 
goods  and  chattels  levied  on  in  this  case  to  be  appraised  ac- 
cording to  law,  by  three  disinterested  persons,  and  that  he 

may  then  sell  the  same  at  private  sale,  for  cash,  within 

days  from  this  date,  at  not  less  than  two-thirds  of  their  ap- 
praised value. 

Appraisement  and  sale  of  lands  and  tenements — 

The  court  has  the  power  when  the  appraisement  of  property  was 
made  probably  under  some  misapprehension  of  the  location  of  the 
property,  or  in  ignorance  of  its  value,  and  where  justice  to  the  parties 
manifestly  requires  it,  to  set  it  aside,  and  order  a  new  appraisement  to 
be  made.^ 

Where  a  levy  has  been  set  aside,  the  parties  stand  just  as  though  no- 
levy  had  ever  been  made.  Before  the  property  which  had  been  levied 
on  can  be  sold,  it  must  be  seized  again. ^ 

^  Lj'tle  r.  Cincinnati  Manufacturing  Co.,  4  Ohio,  459. 
2  Buckingham  v.  Society,  2  Ohio,  360. 
^AVaggoner  v.  Lessee,  etc.,  19  Ohio,  67,  104. 

*  Fowble  V.  Kayberg,  4  Ohio,  59. 

*  Bates  V.  Junction  11.  E   Co. 

«  Patton  V.  Sheriff,  etc.   2  Ohio,  396. 


154  JOURNAL    ENTRIES.  [SEC.  5388- 

The  court  can  confirm  or  set  aside  a  judicial  sale,  but  can  not  modify 
its  terms.  ^ 

286.  (Sec.  5394.)     German  advertisement  dispensed  ivith  [in  cer- 

tain counties']. 

[Title.] 

On  motion,  and  for  good  cause  shown,  advertisement  in  a 
German  newspaper  of  the  sale  to  be  made  in  this  case  is 
hereby  dispensed  with. 

287.  (Sec.  5394.)     Advertisement  in  Bohemian  paper  ordered. 
[  Title.] 

On  motion  of  the ,  and  it  appearing  for  the  best  in- 
terests of  the  defendant  herein,  it  is  ordered  that  notice  of 
the  sale  to  be  made  in  this  case  be  published  in  the  [name 
paper],  a  newspaper  printed  in  the  Bohemian  language,  in 
the  same  manner  and  for  the  same  time  as  published  in  the 
English  paper. 

Make  entries  under  section  5397 — punishing  a  purchaser  of  real  es- 
tate who  fails  to  pay  the  purchase-money  therefor — as  under  "  Con- 
tempts OF  Court." 

288.  (Sec.  5398.)     Decree  of  confirmation;   order  for  deed  and 

distribution. 

[  Title.] 

This  cause  came  on  to  be  heard  on  the  return  of  the  sher- 
iff of  the  writ  of  execution  issued  herein,  with  his  report  of 
his  proceedings  and  sale  of  lands  and  tenements  under  said 
writ.  And  the  court,  having  carefully  examined  the  said 
proceedings,  being  satisfied  that  the  said  sale  has,  in  all  re- 
spects, been  made  in  conformity  to  the  provisions  of  the 
statute  in  such  cases  made  and  provided,  find  the  same  to 
be  legal,^  and  do,  therefore,  approve  and  confirm  the  same. 

>  Ohio  Life  Ins.  and  Trust  Co.  v.  Goodin,  10  Ohio  St.  557. 

2  Some  attorneys  consider  it  necessary,  in  drawing  this  decree,  under  the  pe- 
culiar phraseology  of  sec.  5398,  to  make  the  order  "  that  the  clerk  make  an  en- 
try on  the  journal  that  the  court  is  satisfied  of  the  legality  of  gaid  sale,"  etc. 
but  this  clause  seems  clearly  superfluous,  because,  when,  as  a  matter  of  fact,  the 
entry  is  made  on  the  journal  by  the  clerk,  it  is  the  act  of  the  court;  and  it  is 


-5399.]  EXECUTIOX    AGAINST    THE    PROPERTY.  155 

It  is  further  ordered  that  the  sheriff  make  to  the  purchaser, 
R.  W.,  a  deed,^  according  to  law,  for  the  property  so  sold, 
to  wit  [(f escribe].  And  the  said  purchaser  is  hereby  sub- 
rogated to  all  the  rights  of  any  lienholder  who  shall  be 
satisfied  herein,  for  the  protection  of  his  title.^  And  a  writ 
of  possession  is  awarded  to  put  the  said  purchaser  in  posses- 
sion of  said  premises.^ 

And  the  court  coming  now  to  the  distribution  of  the  pur- 
chase-money in  the  hands  of  the  sheriti",  order  that  he  pay — 

First,  to  the  treasurer  of  this  county  the  taxes  and  penalty 
due  upon  the  property  so  sold,^  to  wit,  the  sum  of  $ . 

Second,  to  the  clerk  of  this  court  the  costs  of  this  action, 
taxed  at  $ . 

Third,  to  the  plaintifiF,  A.  B.,  the  amount  of  the  judgment 
herein  rendered,  with  interest  to  this  date,  to  wit,  the  sum 
of  $ . 

Fourth,  to  the  defendant  herein  the  balance  of  said  pur- 
chase-money, to  wit,  the  sum  of  S . 

The  order  for  distribution  may,  of  course,  be  made  as  a  separate  en- 
try, if  desired. 

289.  (Sec.  5399.)     Order  for  master  to  convey.^ 

[litle.] 

It  appearing  that,  by  a  former  judgment  of  this  court,  the 
defendant  in  this  case  was  ordered  to  convey  to  the  plaintiff, 

conclusively  presumed  that  the  clerk  made  it  by  direction  of  the  court.  Just 
as  it  was  said  in  the  case  of  Earl's  Lessee  v.  Shoulder,  6  Ohio,  409,  that,  when 
an  execution  had  been  issued,  the  order, for  its  issue  would  be  presumed. 

^  Unless  the  deed  is  ordered  by  the  court,  it  will  not  be  received  as  evidence 
of  title.     Curtis  v.  Norton,  1  Ohio,  278. 

2  See  sec.  5410. 

3  See  note  6,  page  117. 

*Sec.  2854.  Held  in  Hoglin  v.  Cohan,  30  Ohio  St.  436,  that  all  taxes  and  pen- 
alties  standing  on  the  duplicate  on  the  first  day  of  the  October  preceding  the 
day  of  sale,  unless  the  sale  is  on  October  1st,  shall  be  paid  out  of  the  purchase 
money.  If  the  sale  is  on  October  1st,  all  taxes  and  penalties  then  so  standing 
shall  be  paid  out  of  such  purchase-money. 

5 The  order  for  a  master  commissioner  to  make  conveyance  may  be  added  to 
the  ^iecree  for  conveyance  or  may  be  made  as  a  separate  order,  as  in  this  entry. 


156  JOURNAL   ENTRIES.  [SEC.  5400- 

by  good  and  sufficient  deed,  certain  real  }>roperty  in  the  peti- 
tion liereiu  described,  and  that  said  defendant  has  neglected 
and  failed  so  to  do,  it  is  therefore,  on  motion  of  the  plaintifi",. 
ordered  that  the  said  conveyance  be  made  by  M.  C,  one  of 
the  master  commissioners  of  this  court,  by  deed  conformable- 
to  the  statute  in  such  case  made  and  provided. 

290.  (Sec.  5404.)     Order  to  sell  on  premises. 
[Title.-] 

It  appearing  to  be  for  the  best  interests  of  all  parties  to- 
this  action,  it  is  ordered  that  the  sale  in  this  case  be  made- 
upon  the  premises,  instead  of  at  the  court  house. 

291.  (Sec.  5407.)     Order  for  succeeding  sheriff  to  make  deed. 
[Title.} 

It  appearing  that  the  term  of  office  of  T.  S.,  the  sheriff 
who  made  the  sale  on  execution  of  the  lands  herein  sold,  has 
expired,  and  sufficient  proof  having  been  made  to  the  court 
that  such  sale  was  fairly  and  legally  made,  on  motion,  it  is 
ordered  that  the  clerk  of  this  court  certify  the  same  to  G.  H., 
the  present  sheriff,  who  is  directed  on  payment  of  the  pur- 
chase-money to  execute  to  the  purchaser,  A.  P.,  a  deed  in 
fee  simple  for  the  said  lands  and  tenements  as  in  the  former 
decree  herein  described. 

For  entry  under  sec-.  5410,  see  Decree  of  CoxrmMATiON. 

292.  (Sec.  5412.)      Vacating  satisfaction  of  judgment. 
[Title.] 

It  being  shown  to  the  court  that  certain  property  levied  ott 
and  sold  in  this  case  was  not  subject  to  levy,  but  was  the 
property  of  L.  AY.,  and  that  the  phvintiff  herein  has  paid  to 
said  L.  W.  upon  recovery  had  by  him  against  this  plaintiff 

in  case  ]^o.  ,  in  this  court,  the  sum  of  $ ,  and  due 

notice  of  this  motion  being  given  to  defendant  herein,  it  is 
ordered  that  the  satisfaction  of  the  judgment  herein  be  set 
aside  (to  the  extent  of  the  payment  aforesaid)  and  held  for 
naught,  and  that  the  judgment  be  restored  with  its  former 
liens  and  priorities  as  before  such  entry  of  satisfaction. 


-5416.]  EXECUTION    AGAINST    THE    PROPERTY.  1')7 

293.  (Sec.  5413.)     Sa7ne,  in  fcnior  of  officer. 

And  now  this  cause  coming  on  to  be  heard  upon  tlic  mo- 
tion lieretoforc  filed  liercin  by  C.  F.,  slierift'of  tliis  county,  for 
vacation  of  the  satisfaction  of  the  judgment  rendered  in  this 
case  and  other  relief,  and  the  defendant  herein  havins:  had 
due  notice  of  said  motion,  the  court  finds  that  the  said  C.  F. 

has  j)aid  the  sum  of  $ upon  a  recovery  had  against  him 

by  L.  W.  in  case  numbered ,  in  this  court,  by  reason  of 

a  sale  wrongly  made  by  him  of  certain  property  belonging  to 
said  L.  W.,  taken  upon  execution  in  this  case,  the  proceeds 
of  which  were  applied  to  the  satisfaction  of  the  judgment 
herein  : 

It  is  therefore  ordered  that  the  satisfaction  of  the  judg- 
ment in  this  case  (to  the  extent  of  the  payment  aforesaid) 
be  vacated  and  held  for  naught,  and  execution  is  allowed  to 
issue  upon  the  same  for  the  use  and  benefit  of  the  said  C.  F. 

294.  Order  fur  new  appraisement. 
[Title.] 

This  cause  came  on  for  hearing  on  the  motion  to  set  aside 
the  appraisement  of  the  real  estate  levied  on  in  this  action, 
and  on  consideration  thereof,  and  good  cause  shown,  it  is 
ordered  that  the  said  appraisement  be,  and  it  hereby  is,  set 
aside  ;  and  it  is  ordered  that  a  new  appraisement  of  the  same 
be  made. 

295.  (Sec.  541G.)     Same,  after  land  being  twice  offered. 
[Title.] 

It  appearing  to  the  court  that  the  real  estate  taken  on  exe- 
cution herein  has  been  twice  advertised  and  ofl'ered  for  sale 
under  the  present  appraisement,  and  still  remains  unsold  for 
want  of  bidders,  now,  on  motion  of the  said  appraise- 
ment is  hereby  set  aside,  and  it  is  ordered  that  a  new  one  be 
made  [or,  the  levy  and  appraisement  heretofore  made  are 
hereby  set  aside,  and  a  new  execution  awarded]. 

Order  to  sell  on  time  may  also  be  added,  as  follows :] 
And  on  motion  of  the ,  and  it  appearing  for  the  best 

interests  of  the  parties,  it  is  ordered  that  the  sale  be  made 
11 


158  JOURNAL    ENTRIES.  [sEC.  5416- 

on  terms  of  one-third  cash,  one-third  in  nine  months,  and 
one-third  in  eighteen  months  from  the  day  of  sale,  tlie  defer- 
red payments  to  draw  six  per  cent  interest,  and  bo  secnred 
by  mortgage  on  the  premises. 

296.  (Sec.  5416.)      Order  dire.ctivg  sale  Jor  certain  amount. 

[ntle.] 

It  appearing  to  the  conrt  that  the  real  estate  taken  on  exe- 
cution herein  has  l)een  three  times  appraised,  and  thereafter 
twice  advertised  and  offered  for  sale,  and  still  remains  unsold 
for  want  of  bidders,  it  is  now,  on  motion,  ordered  that  the 
said  real  estate  may  be  sold  for  the  sum  of dollars,  pay- 
able in  cash  \or  otherunse']. 

For  judgment  against  principal  and  surety  under  sec.  5419,  see  En- 
try No.  515. 

Subdivision  III — Exemption  from  execution — 

298.  (Sec.  5438.)     Re-assignment  of  homestead  ordered. 
[Title.'] 

This  cause  now  coming  on  for  hearing  on  complaint  of  the 

herein   against   the  appraisement  and  assignment  of 

homestead  made  by  the  sheriff  in  this  case,  the  court  finds, 
upon  the  evidence,  that  said  complaint  is  well  taken,  and  it 
is  therefore  ordered  that  a  re-appraisement  and  a  re-assign- 
ment of  said  homestead  be  made  by  said  sheriff. 

SUBDIVISION  V — ExECUTiox  against  the  person. 

299.  (Sec.  5449.)     Order  allowing. 

300.  (Sec.  5456.)     Order  for  discharge  in  certain  case* 

299.  (Sec.  5449.)      Order  allowing. 

[Title.] 

On  motion,  and  a  judgment  having  been  h-eretofore  ren- 
dered in  this  action    in  favor  of   the  plaintiff  against   the 

defendant,  C.  D.,  for  the  sum  of  % and  costs  of  suit,  and 

the  court  being  satisfied  from  the  evidence  that  [here  state  one 
of  the  causes  in  section  5448],  it  is  therefore  ordered  that  an  ex- 
ecution be  allowed  to  issue  against  th''  pcr'^on  of  the  said 


-5463.]  BY    CIVIL    ACTION.  159 

C.  D.,  commanding  the  sheriff  to  arrest  and  commit  the  said 
('.  D.  to  the  jail  of  this  county  until  he  shall  jiay  the  said 
Judgment,  or  be  otherwise  discharged  according  to  law. 

-500.  (Sec.  545G.)     Order  for  discharge  in  certain  cases. 

[ntle.'] 

It  appearing  that  the  defendant,  C.  D.,  heretofore  commit- 
ted to  the  jail  of  this  county  by  an  order  of  the  court  in  this 
case,  is  entirely  unable  to  pay  the  judgment  against  him  [or, 
unable  to  endure  the  imprisonment],  it  is  therefore  ordered 
that  the  said  C.  D.  be,  and  he  hereby  is,  discharged  from  his 
said  imprisonment.  [Add  any  special  order  that  the  court  may 
make.'] 

Subdivision  VI — Privilege  from  arrest — 
301.  (Sec.  5461.)     Order  of  discharge,  on  motion. 

[Title.-] 

On  motion  of  the  defendant,  C.  D.  herein,  heretofore  ar- 
rested in  this  case  upon  process  sued  out  by  A.  B.,  and  it  ap- 
pearing that  such  arrest  was  illegal  for  the  reason  that  [state 
reason  given  under  this  subdivision'],  it  is  ordered  that  said  C. 

D.  be  forthwith  discharged  from  such  arrest,  and  that  the 
said  A.  B.  pay  all  the  costs  of  the  proceedings  in  this  be- 
half 


CHAPTER  n. 

PROCEEDINGS  IX  AID  OF  EXECUTION. 

SuBDivisiox  I.     By  civil  action. 

III.  By  examination  of  debtor. 

IV.  By  attachment. 

SUBDIVISION  I.— By  civil  action. 

302.  (Sec.  5464.)     Decree  subjecting  equitable  interest,  etc.,  to  payment 
of  debt. 

The  remedy  given  by  section  5464  is  one  to  be  exercised  by  the  chan- 
cery powers  of  the  court,  and  the  decree  in  an  action  under  this  section 


160  JOURNAL    ENTRIES.  [SEC.  5464- 

may  take  so  many  different  forms  that  too  much  space  would  be  re- 
quired to  give  them  all.  One  form  is  given,  and  it  can  be  modified  to 
suit  the  other  cases. 

The  following  are  some  of  the  differentcourseswhichthedecreemay 
take: 

1.  A  fraudulent  sale  may  be  declared  void,  and  the  property  be  sold 
by  a  master  commissioner,  and  proceeds  applied  to  payment  of  the  judg- 
ment;^ in  which  case  the  decree  will  be  similar  to  those  under  section 
6344. 

2.  The  defendant  may  be  compelled  to  disclose  his  means  to  pay  tlie 
debt.^  In  this  case  the  entries  to  be  made  will  be  similar  to  those  un- 
der section  5472,  and  following  sections. 

3.  Money  in  the  hands  of  a  third  person  or  a  corporation  may  be  sub- 
jected under  this  section.^  In  this  case  the  proceedings  to  carry  iuto- 
effect  the  decree  will  be  in  the  nature  of  proceedings  in  attachment. 

4.  Unpaid  subscriptions  of  stock  may  be  subjected  to  pay  a  judgment 
against  the  corporation.*  In  such  a  case,  a  master  may  be  appointed 
to  report  names  of  stockholders,  amounts  due,  etc.,  and  a  receiver  to 
collect  amounts  and  pay  debt.  Or  a  judgment  and  execution  may  be 
entered  and  levied  against  any  stockholder.'' 

5.  Debtors  of  the  defendant  may  be  subjected  to  payment  of  plaint- 
iff's judgment  by  a  judgment  and  execution  against  each.*' 

6.  The  interest  of  a  mortgagor  may  be  sold,  subjected  to  the  payment 
of  a  judgment,  and  the  cause  may  be  first  referred  to  a  master  to  state 
an  account  and  report  the  sum  due  and  the  value  of  the  equitable  in- 
terest.' 

7.  When  a  negotiable  note  in  the  hands  of  a  debtor  is  subjected,  the 
court  ought,  if  possible,  to  compel  the  production  of  the  jmper,  and  if 
that  can  not  be  done,  to  suspend  a  decree  in  the  premises  until  the  ma- 
turity of  the  paper,  and  until  the  possible  rights  of  third  parties  can 
be  ascertained ;  because  the  party  who  receives  it  before  due  for  value,, 
and  without  actual  notice  of  the  pendency  of  the  proceedings,  is  en- 

1  Piatt  r.  St.  Clair's  Heirs,  G  Ohio,  227.     See  in  this  case  the  decree  in  full. 
2Miers  v.  Turnpike  Co.,  11  Ohio,  273. 
3  City  of  Newark  v.  Funk,  15  Ohio  State,  462. 
*  Henry  et  al.  v.  Railroad  Co.  17  Ohio,  187. 
5  Warner  v.  Callender  et  al.,  20  Ohio  St.  195. 

^Gilmore  v.  The  Miami  Bank,  3  Ohio,  503.  See  in  this  case  the  decree  in  full' 
entered  by  the  Supreme  Court. 

'Mattocks  V.  Humphrey's  Adm'r,  17  Ohio,  836. 


-5471.]  BY    CIVIL    ACTION.  161 

titled  to  the  proceeds,  notwithstanding  the  chancery  proceeding  to  sub- 
ject it.^ 

302.  (Sec.  54(34.)  Decree  subjecting  equitable  interest,  etc.,  to 
pay  went  of  judgment. 

[  Title.'] 

This  cause  came  on  to  be  beard  upon  the  pleadings  and 
tbe    evidence,  and   the   court,  having   fully  considered  the 

same,  find  that  the  plaintift' recovered  a  judgment  for  $ 

against  the  defendant,  C.  D.,  on  the day  of ,  18 — , 

ill  the  Court  of  Common  Pleas  of county,  and  that  he 

is  still  the  owner  thereof,  as  alleged  in  the  petition ;  that  said 
judgment  remains  unsatisfied,  and  that  there  is  due  thereon, 

with  interest  to  the  first  day  of  this  term,  the  sum  of  $ , 

and  also  the  sum  of  % ,  costs  in  said  case;  that  said  de- 
fendant lias  no  personal  or  real  property  subject  to  levy  on 
execution  sufficient  to  satisfy  said  judgment,^  and  that  he  is 
the  owner  of  an  equitable  interest,  to  wit  [describe'],  in  the 
following  described  real  estate,  viz.  \_d escribe']. 

And  thereupon  the  court  find  that  said  plaintiff' is  entitled 
to  have  said  interest  subjected  to  the  payment  of  the  judg- 
ment aforesaid. 

It  is  therefore  considered  and  decreed  that,  unless  the  judg- 
ment aforesaid  shall  be  paid  within  days,  said  equi- 
table interest  shall  be  sold,  and  that  an  order  therefor  shall 

issue  to  the  sheriff"  of county,  directing  him  to  appraise, 

advertise,  and  sell  said  interest  as  upon  execution  against 
real  estate,  and  report  his  proceedings  to  this  court. 

The  subsequent  entry  of  confirmation  and  distribution  will  be  in  the 
:sanie  form  as  in  case  of  sale  on  foreclosure.     See  Euti-y  No.  225. 

1  Stone  V.  Elliott,  11  Ohio  St.  252-260. 

2 It  is  not  necessary  that  an  execution  should  have  been  issued.  Bomberger 
V.  ■I'urner,  13  Ohio  St.  263. 


162  JOURNAL    ENTRIES.  [SEC.  5472- 


SDBDIVISION  III. — By  examination  of  debtor. 

KlXnS    OF    PROCEEDINGS — 

Ist.    When  instituted  without  affidavit  or  proof. 

303.  (Sec.  5472.)     Order  for  defendant  to  appear. 
Notice. 

304.  (Sec.  5477.)     Order  appointing  referee  after  the  appearance,  etc. 

2c?.    When  instituted  upon  affidavit  or  proof  of  property. 

305.  (Sec.  5473.)     Order  for  defendant  to  appear  [made  by  a  judge]. 
306.'  (Sec.  5473.)     Order  for  defendant  to  appear  [made  by  the  court]. 

307.  (Sec.  5477.)     Appointing  referee. 

Zd.    When  commenced  by  an  order  of  arrest. 

308.  (Sec.  5474.)     Order  for  arrest. 
Warrant  for  arrest. 

309.  (Sec.  5474.)     Order  for  undertaking. 

310.  (Sec.  5477.)     Appointing  referee. 

Ath.   Proceedings  against  third  parties. 

311.  (Sec.  5475.)     Order  for  appearance  of,  after  execution. 

312.  (Sec.  5475.)     Order  for  appearance  of,  before  e.xecution. 

APPLICiTlOX    OF    PROPERTY    DISCOVERED 

313.  (Sec.  5483.)     Order  for,  when  in  hands  of  defendant. 

314.  (Sec.  5483.)     Order  for,  when  in  hands  of  third  party. 

315.  (See.  5484.)     Appointing  receiver. 

316.  (Sec.  5486.)     Order  for  receiver  to  sell. 

317.  Order  for  receiver  to  pay  off  judgment. 

318.  Order  for  receiver  to  apply  funds. 

Minutes  of  the  judge — 


I^ATURE    OF    THE    PROCEEDINGS — 

These  proceediug.s  are  copied  from  the  New  York  Code  of  Procedure,, 
and  their  object  is  to  subject  to  the  payment  of  a  judgment  a  class  of 
pei'sonal  property  which  is  most  easily  concealed  by  a  judgment  debtor. 

All  the  more  recent  decisions  lean  .so  decidedly  in  favor  of  regarding 
these  proceedings  as  proceedings  in  the  action  where  the  judgment  Avas 


-5472.]  EXAMINATION    OF    DEBTOR,  ETC.  1C3 

rendered,  that  this  point  is  deemed  settled  in  New  York.'  Our  own 
code  appears  to  contemplate  the  same  construction  ;  as,  in  case  of  a  sale 
of  the  debtor's  interest  in  any  real  estate,  the  proceedings  of  sale  must 
be  ai)proved  by  the  court  in  which  the  judgment  was  rendered,  or  the 
transcript  filed."  And  so,  also,  the  judge  before  whom  the  proceedings 
are  had  is  required  to  reduce  his  orders  to  writing,  and,  with  a  minute 
of  his  ])rocecdings,  to  file  tliem  with  the  clerk  of  the  county  in  which  the 
judgment  was  rendered  or  the  transcript  filed,'  whether  he  be  a  mem- 
ber of  the  court  of  that  county  or  not. 

The  judge  who  entertains  the  proceedings  appears  to  act  as  a  special 
judicial  officer,  and  not  as  the  court.  And  in  New  York  it  has  been 
lield  that  where  authority  has  been  given  only  to  the  judge  to  act,  that 
the  court  has  no  power  to.* 

The  Supreme  Court  of  Kansas,  however,  holds  that  these  proceed- 
ings had  before  the  court  are  valid,  because  the  court  the  greater  in- 
cludes the  judge  the  less.* 

Our  own  Supreme  Court  has  not  passed  on  this  question,  but  the  rea- 
sons given  by  Lawrence,  J. ,  in  the  case  of  Welch  v.  P.,  Ft.  W.  &  C.  R. 
R.  Co.,  in  the  Common  Pleas  Court  of  Allen  county  (1859),  reported 
in  1  W.  L.  M.  143,  seem  sufficient  to  warrant  us  in  following  the  New 
York  decisions,  and  in  holding  that  where  the  statute  authorizes  a  judge 
only  to  sit  in  these  proceedings,  he  sits  not  as  a  court,  but  simj^ly  as  a 
judge.  This  power  conferred  on  him  by  the  legislature  is  directly  au- 
thorized by  article  4,  section  18,  of  the  constitution,  which  authorizes 
})Owers  to  be  given  to  a  judge  distinct  from  those  given  to  the  court  by 
section  4  of  the  same  article. 

The  proceedings  when  not  instituted  in  the  couH  in  which  the  judg- 
ment was  rendered,'*  may  have  the  original  title,  or  the  following: 

In  the  matter  of  proceedings  in  aid  of  exe-^ 
cution  in  the  case  of  A.  B.  v.  C.  D.,  No.  [ 

,  of  the  Court  of  Common  Pleas  of 

county,  Ohio. 

1  The  New  York  decisions  here  cited  are  mostly  collated  from  "  Supplement- 
ary Proceedings,"  by  Daniel  S.  Kiddle,  of  the  New  York  bar. 

2  Code,  sec.  5486. 
^  Code,  sec.  5487. 

^Miller  v.  Kosseman,  15  How.  10. 
^Kiser  v.  Sawyer,  4  Kan. 
6  Code,  sec.  5473. 


164  journal  entries.  [sec.  5472- 

Kjnds  of  proceedings — 

These  proceedings  may  be  considered  under  four  heads : 

1st.     When  instituted  without  affidavit  or  proof. 

2d.  When  instituted  upon  affidavit  of  proof  of  property,  etc 

3d.  When  commenced  by  an  order  of  arrest. 

4th.  Those  against  third  parties. 

1st.    When  instituted  without  affidavit  or  jiroof. 

In  this  case  the  proceedings  are  had  under  section  5472,  and  only 
after  an  execution  returned  unsatisfied,  in  Avhole  or  in  part.  And  the 
order  can  only  be  issued  by  a  probate  or  common  pleas  judge  of  the 
county  to  which  the  execution  was  issued. 

The  judge,  as  a  separate  judicial  officer,  on  application  of  the  plaint- 
iff, will  make  an  order  that  the  defendant  appear  and  answer  concern- 
ing his  property  either  before  himself  or  a  referee  appointed  by  him,  at 
a  time  and  place  certain.  This  order  must  be  reduced  to  writing,^  and, 
Avith  others,  must  be  returned  to  the  court  wherein  the  judgment  was 
rendered  or  transcript  filed. ^  But  is  it  not  also  an  '•  order,"  under  sec- 
tion 5310,  to  be  entered  by  the  clerk  on  the  journal  of  the  court  of 
Avhich  the  judge  is  a  member,  by  virtue  of  section  4963?  Perhaps  not, 
from  the  fact  that  these  are  special  proceedings,  and  are  controlled  spe- 
cifically by  the  sections  in  this  chapter ;  but  it  Avill  do  no  harm  so  to 
enter  this,  and  all  subsequent  orders  of  the  judge,  on  the  journal  of 
the  court.  They  are  at  any  rate  thus  preserved  from  loss.  But  the 
judge  should  still  file  a  record  of  his  orders  and  proceedings  Avith  the 
clerk  of  the  county  Avhere  the  judgment  Avas  rendered  or  transcript 
filed,  in  compliance  Avith  section  5487,  even  though  the  court  be  the  one 
of  which  he  is  judge.  A  copy  of  this  order  AA'ill  also  be  made  out  and 
be  signed  by  the  judge,  and  served  upon  the  defendant  as  a  summons  in 
other  cases. ^^ 

The  referee  may  be  appointed  to  report  the  evidence  or  the  facts.^ 

If  it  appears  from  the  examination  that  the  debtor  has  no  such  prop- 
erty as  claimed  by  the  plaintiff,  the  proceedings  Avill  be  dismissed,  for 
this  fact  is  necessary  to  confer  jurisdiction.*  And  they  should  be  dis- 
missed at  plaintiff's  cost. 

If  pi'operty  is  discovered,  orders  Avill  be  made  concerning  it  as  here- 
after shoAvn. 

\    iCode,  sec.  5487. 

■■TT.  Bank  of  Rochester  v.  U.  Bank  of  Sandusky,  6  Ohio  St.  260. 

3  Code,  sec.  5477. 

*Sacket  v.  Newton,  10  How.  560. 


-5472.]  EXAMINATION    OF    DEBTOR,    ETC.  165 

303.  (Sec.  5472.)     Order  for  defendant  to  appear. 

[Title.] 

On  motion  of  the  plaintiif  in  tlie  above-recited  case,  and  it 
appearing  that  an  execution  against  the  property  of  the  de- 
fendant, C.  D.,  duly  issued  to  the  sheriff  of  this  county,  has 
been  returned  wholly  \_or,  in  part]  unsatisfied,*  it  is  hereby 
ordered  that  the  said  C.  D.  do  appear  before  me  [or,  before 
M.  R.,  Esq.,  who  is  hereby  appointed  referee  in  this  cause,  to 
take  the  examination  of  the  said  C.  D.  in  writing,  and  to  re- 
port the  evidence  to  me],'  at ,  on  the  day  of , 

18 — ,  at o'clock  -.  M.,  to  answer  under  oath  concerning 

his  property. 

And  the  said  C.  D.  is  hereby  enjoined  and  restrained  from 
transferring,  or  in  any  way  disposing  of  any  of  his  property, 
money,  or  credits,  until  further  order  in  tlie  premises.^ 

On  the  above  order,  the  judge  Avill  cause  to  be  issued  the  following : 

NOTICE.^ 

The  State  of  Ohio,  \  ^^ 

County  of .  J 

To  the  sheriff  of  the  county  of ,  greeting  : 

You  are  hereby  commanded  to  notify  CD.  that  the  fol- 
lowing order  has  been  made  by  me,  to  wit  [copy  the  preceding 
title  and  order  iiifuKI  ;*  and  that  he,  the  said  C.  D.,  be  and  ap- 
pear before ,  at  the  time  and  place  in  said  order  men- 
tioned, and  in  all  things  observe  and  obey  the  same. 

And  at  said  time  you  will  make  due  return  of  this  order. 
AVitness  :  M.  F., 

Judge  of  the  Court  of  Common 

Pleas  of county,  Ohio. 

1  Code,  sec.  5477;  or  the  referee  maybe  appointed  "to  report  the  facts"  only, 
and  the  evidence  need  not  be  taken  in  writing.     See  3  Law  G.  251. 

2  By  sec.  5484. 

3  The  sheriff  will  serve  and  return  this  notice  like  a  summons.    See  sec.  5487. 
-t  Union  Bank,  etc.  v.  Union  Bank,  etc.,  G  Ohio  St.  260. 


166  JOURNAL    ENTRIES.  [SEC.  5472- 

304.  (Sec.  5477.)  Order  appointing  referee  after  the  appear- 
ance, etc. 

[Title.] 

The  judgment  debtor  herein  [or  any  person  hacing  property 
of  the  judgment  debtor,  naming  /u'm],  having  appeared  [or,  been 
brought]  before  me  in  supplementary  proceedings  in  this  ac- 
tion,! do  hereby  [upon  the  consent  of  the  parties  herein]  ap- 
point R.  S.,  Esq.,  referee  to  take  the  evidence  lierein,  and 
report  the  same  to  me  [or,  report  to  me  the  facts.]  ^  And  the 
said  C.  D.  [or  other  person']  is  hereby  ordered  to  appear  and 

attend  before  the  said  R.  S.,  at ,  on  the day  of , 

18 — ,  at  o'clock,*  for  examination  and  discovery  con- 
cerning his  property. 

Or,  if  the  order  is  for  the  examinatio?i  of  a  third  party,  con- 
chide]  : — ^fov  examination  and  discovery  concerning  any 
property  of  the  defendant,  C.  D.,  in  his  possession,  or  any 
debt  due  the  said  defendant  from  him. 

2d.    IVIien  instituted  upon  affidavit  or  jyroof  of  property. 

The  proceedings  in  this  case  may  be  commenced  after  issuing,  and 
before  return  of  an  execution,  under  section  5473. 

They  may  be  had  before  a  judge,  as  in  the  last  section,  or  before  the 
common  pleas  court  of  the  county  in  which  the  order  may  be  served. 
If  made  by  a  judge,  the  remarks  under  the  last  section  are  applicable 
to  this. 

If  had  before  a  court  other  than  the  one  rendering  the  judgment, 
the  proceedings  should  be  entitled  as  on  page  163,  and  be  numbered 
and  docketed  as  a  case  in  the  court  entertaining  the  proceedings ;  and 
the  orders  made  as  other  orders  in  the  court,  and  entered  on  the  jour- 
nal. It  is  probable  that  the  defendant  should  be  served,  not  with  a 
regular  summons,  but  instead  with  an  order  signed  by  the  judge,  as  in 
case  the  judge  hears  all  the  proceediugs.'- 

A  referee  mav  be  appointed  to  take  the  examination.'' 

If  tlie  proceedings  are  had  before  the  court  in  which  judgment  was 
rendered,  the  order  will  be  regularly  entered  on  the  journal  as  other 
orders.     But  it  would  still  seem  that  the  defendant  should  be  brought 

1  If  only  the  facts  are  to  be  reported,  the  evidence  need  not  be  taken  in  writ- 
ini;.     See  Directors,  etc.  r.  Woodruff,  3  Law  G.  251. 

2  Code,  sec.  5487.  '  Code,  sec.  5477.  , 


-5473.]  EXAMINATION    OF    DEBTOR,    ETC.  167 

in,  by  an  order  made  and  signed  by  the  judrje,  in  the  same  manner  as 
wlieu  the  judge  ah)ne  entertains  tlie  proceedings.  There  is  but  one 
way  pointed  out  for  l)ringing  the  defendant  in,"  and  that  seems  to  apply 
to  all  cases. 

Although  this  is  the  only  section  under  which  the  couH  is  directly 
authorized  to  act,  the  judge  only  being  mentioned  in  all  of  the  others, 
yet  as  the  latter  jxirt  of  tliis  section  authorizes  such  proceedings  to  be 
had  "  for  the  application  of  the  property  of  the  judgment  debtor 
toward  the  satisfaction  of  the  judgment  as  are  prescribed  in  this  sub- 
division," it  is  probably  intended  that  the  court  beginning  proceedings 
under  section  5473  shall  have,  in  carrying  on  the  examination  thus 
l)egun,  all  the  powers  given  to  the  judge  by  sections  5483,  5484,  and 
5486 ;  otherwise,  this  latter  clause  would  have  no  effect,  so  far  as  the 
court  is  concerned ;  and  the  court  would  be  limited  to  the  examination 
of  the  debtor,  with  no  power  to  proceed  a  step  further. 

305.  (Sec.  5473.)  Order  for  defendant  to  appear  [made  by  a 
jadfje']. 

[Title.'] 

On  motion  of  the  plaintift' in  the  above-recited  action,  and 
it  appearing  that  an  execution  has  been  duly  issued  against 
the  property  of  the  defendant,  C.  D.,  and  it  further  appear- 
ing by  the  affidavit  of  the  said  A.  B.  [or  other  proof],  to  my 
satisfaction,  that  the  said  C.  D.  has  property  which  he  un- 
justly refuses  to  apply  to  the  satisfaction  of  the  judgment  in 
the  above-recited  action,  *  [conclude  as  from  *  in  Entry  No. 
303. 

30G,  (Sec.  5473.)  Order  for  defendant  to  appear  [made  by  the 
coart\ 

Use  the  last  form,  substituting  the  court  for  the  judge. 

The  notice  will  be  in  the  same  form  as  under  the  last  section,  page 

■  in5. 

307.  (Sec.  5477.)      Order  appointing  referee. 
See  Entry  No.  304. 
'  Code,  sec.  5487. 


108  JOURNAL    ENTRIES.  [SEC.  5474- 

•3(7.    When  commenced  bij  an  order  of  arrest. 

The  proceedings  in  this  case  are  instituted  under  section  5474. 

The  warrant  is  alternative  to  the  orders  under  sections  5472  and  5478, 
and  hence  shouhl  not  be  accompanied  with  the  order.^ 

It  can  only  be  issued  by  a  judge  in  the  county  in  which  the  debtor 
resides  or  may  be  arrested.  Must  the  order  for  the  arrest  be  reduced 
to  writing,  under  section  5487?  Perhaps  there  is  no  absolute  necessity 
for  it,  but  it  will  avoid  question  and  preserve  the  record  in  case  the  pa- 
pers are  lost,  and  it  Avould  therefore  be  better  to  treat  this  like  all  other 
orders  made  by  the  judge.  Then,  the  order  being  made,  the  judge  is- 
sues the  warrant.  The  warrant  should  probably  be  signed  by  the  judge 
and  be  issued  by  the  clerk,  as  in  ordinary  cases,"  and  will  be  served  by 
the  sheriff. 

Upon  the  appearance  and  examination  of  the  debtor,  he  will  be  dis- 
charged from  arrest  unless  the  judge  find  that  he  has  property  which 
he  unjustly  refuses  to  apply  to  such  judgment,  or  that  there  is  danger 
of  his  leaving  the  state ;  and  the  discharge  should  be  at  the  plaintiff's 
cost. 

If  either  of  the  above  facts  is  found,  the  order  for  an  vmdertaking 
Avill  be  made,  and  the  same  proceedings  also  had  as  in  cases  of  appear- 
a,nce  without  arrest. 

The  order  and  warrant  will  require  the  debtor  to  appear  before  the 
judge  in  the  first  instance,  but  afterward  a  referee  may  be  appointed, 
as  in  other  cases,  to  examine  him  concerning  his  property,  as  in  Entry 
No.  304. 

308.  (Sec.  5474.)     Order  for  arrest. 

[Title.] 

As  in  No.  303  or  305  to  *,  and  continue  •] — and  it  further  ap- 
pearing from  the  affidavit  of  the  said  A.  B.  [or  otherwise']  that 
there  is  danger  of  the  said  C.  I),  leaving  the  state,  it  is  there- 
fore ordered  that  a  warrant  issue  to  the  sheriff"  of  this  county 
for  the  arrest  of  the  said  C.  D.,  and  directing  said  sheriff  to 

bring  hivn  before  me,  at  ,  on  the  day  of ,  for 

examination  concerning  his  intentions  and  his  property. 

1  Andrews  v.  Wilson,  9  How.  39.  -  Code,  sec.  4959. 


-5474.]  EXAMESfATION    OF   DEBTOR,    ETC.  169^ 


WARRANT      OR    ARREST. 

The  State  of  Ohio,  1 

county,  / 

7b  J.  H.  Esq.,  sheriff  of  our  said,  coaniy,  (ireHiiKj  .- 

Whereas,  the  following  order  was  thi^3  day  made  by  me. 
to  wit  \_copii  tlic  above  or<ler~\. 

You  arc  therefore  commanded  to  take  tlie  said  C.  D.,  if  he 
may  he  found  in  your  bailiwick,  and  liim  safely  keep,  so  that 
you  have  his  body  before  me  at  the  place  and  time  above  set. 
forth;  and  have  then  and  there  this  writ. 
Witness :  M.  F., 

Judge  of  the  Court  of  Common 

Pleas, County,  Ohio, 

309.  (Sec.  5474.)      Order  for  undertaking. 
ITille.-] 

This  day  came  before  me  the  said  C.  D.,  in  custody  of  the 
sheriiF,  on  the  warrant  of  arrest  heretofore  issued  by  me,  and 
being  satisfied  that  there  is  danger  that  the  said  C.  D.  will 
leave  the  state  [or,  conceal  himself]  to  avoid  examination  as 
judgment  debtor  in  this  case  [or,  has  property  which  he  un- 
justly refuses  to  apply  to  the  judgment  herein];  it  is  hereby 
ordered  that  the  said  C.  D.  enter  into  an  undertaking  in  the 

sum  of  dollars,  with  good  and  sufficient  sureties,  that 

he  will,  from  time  to  time,  as  directed,  attend  before  me  [or, 
before  R.  E.,  hereby  appointed  referee  for  that  purpose],  for 
examination.  And  such  undertaking  being  given,  the  said 
C.  D.  shall  be  discharged  from  the  custody  of  the  sheriiF. 
And  in  default  thereof,  the  said  C.  D.  shall  be  committed  to- 
the  jail  of  the  county  as  for  a  contempt.^ 

310.  (Sec.  5477.)     Order  appointing  referee. 
See  Entry  No.  304. 

Ath.  Proceedings  agaimt  third  parties. 
These  proceedings  are  had  under  section  5475.     They  can  only  be 

'  Tlio  order  forbidding  transfer  of  property,  as  in  Entry  Ko.  30o,  may  also  be^ 
added,  if  necessary. 


170  JOURNAL    ENTRIES.  [SEC.  5475- 

liad  before  a  judge,  \ipoii  affidavit  or  proof  that  tlie  third  party  has 
property  of  the  judgment  debtor. 

The  orders  will  be  similar  iu  form  to,  and  are  subject  to  the  same  re- 
marks as  those  under  section  5472.  A  referee  may  also  be  appointed 
as  under  section  5472. 

311.  (Sec.  5475.)      Order  for  cq^pearance  of  third  'party,  after  ex- 

ecution issued. 

ITitle.'] 

On  motion  of  the  plaintiff  in  the  above  recited  action,  by 
his  attorney,  and  it  appearing  that  an  execution  has  been 
duly  issued  upon  the  judg-ment  heroin  against  the  property 
of  the  defendant,  CD.  [and  returned  unsatisfied],  and  it  ap- 
pearing to  my  satisfaction  that  one  E.  F.  has  in  his  hands 
property  of  [or,  is  iudebtedto]  the  said  C.  D.,  it  is  hereby  or- 
dered *  that  the  said  E.  F.  appear  before  mc,^  and  answer 

concerning  the  same,  at ,  on  the day  of ,  18 — , 

at o'clock.  [And  it  is  further  ordered  that  the  plaint- 
iff notify  the  said  defendant,  C.  D.,  of  the  matters  herein,  so 
as  to  give  him  sufficient  time  to  be  present  at  such  examina- 
tion.2] 

312.  (Sec.  5475.)     Order  for  appearance  of,  before  execution. 

On  motion  of  the  said  A.  B.,  by  his  attorney,  and  it  ap- 
pearing from  the  affidavit  of  the  said  A.  B,  [or  otherwise']  that 
E.  F.  has  in  his  hands  property  of  [or,  is  indebted  to]  the  said 
C.  D. ;  and  it  further  appearing  to  my  satisfaction  that  [state 
one  of  the  grounds  of  attachment  in  section  5521],  it  is  hereby 
ordered,  *  etc.  [conclude  as  from  *,  in  last  e7Ury]. 

The  notice  to  the  third  party  will  be  in  form  as  under  section  5472, 
page  165. 

It  may  be  sometimes  advisable  to  annex  to  the  order  or  notice  a 
clause  forbidding  the  transfer  of  property,  as  under  section  5472,  En- 
try No.  803,  for  the  information  of  the  party  to  whom  it  is  issued. 

1  Or,  by  sec.  5477,  he  may  be  ordered  to  appear  before  a  referee,  as  in  Entry 
No.  303. 
'  At  the  option  of  the  court. 


-5483.]  examination  of  debtor,  etc.  171 

Application  of  property  discovered — 

If  it  is  discovered,  upon  examination,  under  any  of  the  foregoing 
sections,  that  the  debtor  lias  property  subject  to  execution,  either  in 
hi.s  own  hands  or  in  the  hands  of  a  third  party,  the  judge  or  court  may 
order  tluit  it  be  applied  toward  the  .satisfaction  of  the  judgment.^  But 
tlic  order  can  not  be  enforced  by  attachment  or  imprisonment. ■  '  The 
order  of  application  fixes  the  right  of  the  judgment  debtor,  so  that  if 
possession  of  the  property  is  obtained,  or  the  debt  collected  by  the  slier- 
itf  or  receiver,  under  section  5484,  the  proceeds  may  be  duly  applied 
to  the  discharge  of  the  judgment.* 

It  was  held  by  the  Supreme  Court  of  Kansas,  under  section  479, 
Comp.  L.  1862  [same  as  section  5483,  Ohio  Code],  that  the  following 
order  against  one  found  indebted  to  the  defendant  in  execution  was 
authorized,  viz.:  "That  the  said  John  Arthur  pay  into  the  hands  of 
the  clerk  of  the  court  said  sum  of  S813.G0."  But  the  part  of  the  or- 
der awarding  execution  against  the  garnishee  to  collect  the  money  in 
case  of  default  in  the  payment  thereof  to  the  clerk  was  not  allowed.* 

Where  property  sought  by  these  supplementary  proceedings  can  not 
be  reached  and  directly  applied  upon  the  judgment,  a  receiver  must  be 
apjDointed  :'"  that  is,  where  debts  are  to  be  collected,  property  to  be  con- 
verted into  money,  and  conflicting  claims  determined. - 

The  appointment  is  made  by  the  judge.  But  if  the  proceedings  are 
instituted  before  the  court,  under  section  5473,  the  receiver  should  be 
appointed  by  the  court.  If  there  is  not  sufficient  authoritv,  under 
these  proceedings,  for  the  court  to  make  the  appointment,  still  section 
5587  gives  sufficient.  The  duties  of  the  receiver  are  similar  to  those 
in  other  cases. 

313.  (Sec.  5483.)  Order  for  application  of  property  in  the  hands 
of  debtor. 

[Title.'] 

And  now,  it  appearing  upon  the  examination  of  the  said 
C.  D.,  that  he  has  certain  property,  not  exempt  from  execu- 
tion, to  wit  [describe  -property],  it  is  hereby  ordered  that  the 

1  Code,  sec.  5483. 

"Edgarton  v.  Hanna,  11  Ohio  St.  323. 

3  Union  Bank,  etc.  v.  Bank,  etc.,  6  Ohio  St.  254. 

*  Arthur  v.  Hale,  6  Kan.  161. 

*  Code,  sec.  5484. 


172  JOURNAL    ENTRIES.  [SEC.  5483- 

same  be  delivered  [or,  paid  over]  to  /  that  it  may  be  ap- 
plied tc  the  satisfaction  of  the  judgment  rendered  against 
him,  in  favor  of  the  said  A.  B. 

314.  (Sec.  5483.)      Order  for  application  of  property  in  the  hand. 

of  third  party. 

[litlc.'] 

And  now,  it  appearing  upon  the  examination  of  the  said 
E.  F.,  that  he  has  in  his  hands  certain  property  not  exempt 
from  execution  belonging  to  the  said  C.  D.,  to  wit  [describe'], 
[or,  that  the  said  E.  F.  is  indebted  to  the  said  C.  D.  in  the 

sum  of  % ],  it  is  hereby  ordered  that  the  same  be  delivered 

over  [or,  paid]  to }  that  it  may  be  applied  to  the  satisftic- 

tion  of  the  judgment  rendered  against  the  said  C.  D.  in  favor 
of  the  said  A.  B. 

To  either  of  the  last  two  orders  may  be  added  the  appointment  of  a 
receiver  of  the  property  of  the  judgment  debtor,  or  the  appointment 
may  be  made  by  a  separate  entry. 

315.  (Sec.  5484.)     Order  appointing  receiver. 
[Titlc?^ 

It  appearing  from  the  examination  of  the  judgment  debtor 
herein  [or,  of  E.  F.]  before  me  [or,  R.  S.,  Esq.,  referee,  who 
has  filed  the  report  of  his  proceedings],  that  there  ^s  certain 
property  not  exempt  from  execution  in  the  hand-  of  the  said 
C.  D.  [or,  E.  F.  belonging  to  the  said  C.  D.],  which  can  not 
be  directly  applied  upon  the  said  judgment,  on  motion  of  the 

said ,  it  is  hereby  ordered  that  G.  H.  be,  and  he  hereby 

is,  appointed  receiver  heroin,  *  of  all  the  debts,  property, 
equitable  interests,  rights,  and  things  in  action  of  the  said 
judgment  debtor  [If  the  receiver  is  appointed  for  a  special 
purpose,  it  shot dd  here  he  specified  thus;  commencing  at  *,  con- 
tinue:']— to  collect  and  receive  the  following  property  [A^re 
specify  the  same]  belonging  to  the  defendant,  C.  D.,  and  under 
his  control  [or,  in  the  hands  of  the  said  E.  F.],  and  to  apply  the 
same,  or  the  proceeds  thereof,  under  direction  of  the  court,: 

1  Sheriff,  clerk,  or  receiver.     Or  it  may  be  ordered  paid  directly  to  the  plaint- 
iff, and  applied  to  tlie  judixment. 


-5486.]  EXAMINATION    OF    DEBTOR,    ETC.  173 

toward  the  Batisfactioii  of  the  aforesaid  judgment  and  costs, 
and  to  liold  the  remainder,  if  any,  subject  to  the  further  or- 
der of  the  court]  ;  that  before  entering  upon  his  duties  such 
receiver  execute  to  tlie  State  of  Ohio  ^  an  undertaking  in  the 

sum  of dolhirs,  conditioned  according  to  hiw,  with  good 

and  sufficient  security. 

It  is  further  ordered  that  the  said  judgment  debtor  [or,  the 
said  E.  F.]  dohver  to  tlic  said  receiver  all  moneys  and  other 
])roperty  now  in  liis  possession,  or  under  liis  control,  belong- 
ing to  him  [or,  to  the  said  C.  D.],  and  not  exempt  from  exe- 
cution.^ 

And  the  said  C.  D.  is  hereby  restrained  from  transferring 
or  disposing  of  his  property,  or  in  any  manner  interfering 
therewith,  until  further  order  in  the  premises. 

31G.  (Sec.  5486.)      Order  for  receiver  to  sell,  dc. 

[77//..] 

And  now,  the  said  C.  D.  having  been  examined  before  me, 
and  it  appearing,  upon  such  examination,  that  he  has  some 
[or,  an  equitable]  interest  in  certain  real  estate  in  this  county, 
to  wit  [as  mortgagor  of],  the  following  described  real  estate 
[describe'],  it  is  therefore,  on  motion  of  the  plaintift",  ordered 
that  the  receiver  heretofore  appointed  in  this  action  proceed^ 
as  in  case  of  sale  of  real  estate  on  execution,  to  sell  the  said 
real  estate  [or,  equitable  interest  of  the  said  C.  D.]  and  re- 
turn his  proceedings  without  unnecessary  delay. 

The  proceedings  of  sale  must  be  approved  by  the  court  in  which  the 
judgment  was  rendered,^  as  iu  cases  of  sale  upon  execution.  Modify 
decree  of  confirmation,  decree  No.  225,  accordingly. 

317.   Order  for  receiver  to  pay  off  a  judgment. 

[Title.] 

It  appearing  that  the  defendant,  C.  D.,  is  indebted  to  the 

plaintiff  on  the  judgment  herein,  in  the  sum  of dollars, 

with  interest  from  the day  of ,  18 — ,  and  that  R.  S., 

the  receiver  appointed  in  supplementary  proceedings  herein, 
has  in  his  hands  money  sufficient  to  satisfy  the  same,  it  is 
hereby  ordered  that  the  said  receiver  pay,  first  the  costs  of 

1  Code,  pec.  5-)85.  ^  Soe  pac;e  171  and  notes.  'Code,  sec.  5486. 

12 


174  JOURNAL    ENTRIES.  [SEC.  5487- 

tliis  case  [or,  of  these  proceedings],  including  as  a  fee  to  him- 
self, as  such  receiver,  the  sum  of dollars,  which  is  hereby 

allowed  to  him  as  a  reasonable  amount  for  his  services  herein, 

taxed  at  $ ;  and  secondly,  to  the  plaintiff  or  his  attorney, 

G.  n.,  upon  his  receipt  being  given  therefor.*  the  full  amount 
of  his  said  judgment. 

And  it  is  ordered  that  said  defendant  file  all  of  said  re- 
ceipts with  the  clerk  of  the  court  wherein  his  bond  is  filed, 
and  that  said  judgment  be  entered  satisfied  on  the  record.. 

.318.   Order  for  receiver  to  apply  fu7ids. 
■     ITitle.] 

\  As  in  last  to  *,  and  continue-] — the  balance  of  the  funds  re- 
maining in  his  hands  to  be  applied  as  a  credit  on  the  said 
judgment. 

Minutes  of  the  judge — 

The  report  of  the  judge,  to  be  filed  with  the  clerk  of  the  court,  may 
begiu  as  follows : 

The  State  of  Ohio, 


County  of  ''   "' 

Proceedings  in  aid  of  execution  had  before  me,  one  of  the 

judges  of  the   court  of  of  ,  in   the  case  of  A.   B. 

against  C.  D.,  numbered ,  in  the  [said]  court  of of 

,  Ohio. 

On    the day  of ,  18 — ,  came  the   said  A.  B.,  and 

made  application  [state  nature']  ;  and  thereupon  the  following 
order  was  made,  to  wit:  [Copy  the  order,  and  so  continue  vith 
all  the  proceedings. 

Close  as  follows  : 

I  do  hereby  certify  that  the  above  is  a  true  record  of  the 
proceedings  and  orders  had  before  me  in  the  case  therein  set 

forth. 

M.  T.,  Judge  of  the  Court  of of . 


SUBDIVISION  IV.— By  attachmknt. 

For  proceedings  to  enforce  a  judgment  by  attachment,  see  Con- 
tempts OF  Court,  post,  p.  206. 


-5501.]  ARREST   AND   BAIL.  175 


DIVISIOiSr  VI. — Provisional  Remedies. 

Chapter  I.  Arrest  and  rait, 
II.  Attachmkxt. 
IV.  Injunction. 
V.   Receivership  and  other  provisional  remedies. 


CHAPTER  I. 

ARREST  AND  BAIL. 


Money  deposited  in  i.iku  of  bail — 

519.  (Sec.  5501.)     Order  for  safe-keeping  of. 
320.  (Sec.  5515.)     Order  refunding. 


Proceedings  against  bail — 

321.  (Sec.  5516.)     Order  staying. 

Miscellaneous — 

322.  (Sec.  5517.)     Order  of  arrest  vacated. 

323.  (Sec.  5517.)     Amount  of  bail  reduced. 

324.  (Sec.  5456.)     Order  for  discharge  of  prisoner. 

Money  deposited  in  lieu  of  bail — 

319.  (Sec.  5501.)     Order  for  safe-keeping  of. 

{Title:] 

The  sheriff  of  this  county  having  brought  here  certain 

money,  to  wit,  the  sum  of dollars,  received  by  him  from 

the  defendant  herein  in  lieu  of  bail,  it  is  ordered  that  said 
sheriff  keep  said  money  in  his  possession  until  further  order 
of  this  court. 


176  JOURNAL    ENTRIES.  [SEC.  5502- 

Other  orders  of  court  may  be  made  for  the  safe  keeping  of  bail 
money,  and  after  final  judgment  an  order  will  be  made  directing  it 
to  be  paid  to  the  party  entitled  to  it. 

320.  (Sec.  5515  ;  77  0.  L.  4(3.)      Order  refunding. 

iritie:\ 

On  motion,  and  it  being  shown  to  the  court  that  the  de- 
fendant herein  has  given  an  undertaking  in  hail  in  this  ac- 
tion according  to  law,  it  is  hereby  ordered  that  the  money 
heretofore  dei)0sited  by  the  said  defendant  in  lieu  of  bail,  to, 
wit,  the  sum  of  S ,  he  refunded  to  the  said  CD. 

Proceedings  against  bail — 

321.  (Sec.  5516.)     Order  staying. 
\_Title:\ 

On  motion  of  the  defendant,  and  it  appearing  that  proceed- 
ings in  error  have  been  commenced  on  the  judgment  against 
C.  M.,  in  case  ISTo. of  this  court,  in  which  the  undertak- 
ing here  sued  on  was  given,  it  is  ordered  that  all  proceedings 

in  this  case  be  stayed  for days,  or  until  further  order  of 

this  court,  on  payment  by  the  defendant  of  all  costs  hereto- 
fore accrued  against  him. 

If,  on  such  proceedings,  the  juagment  against  the  principal, is  re- 
versed,  the  suit  against  the  bail  must  be  dismissed,  or  judgment  be  set 
aside.  An  order  should  also  be  made  in  the  original  case,  discharging 
the  bail  from  his  undertaking. 


Miscellaneous — 

322.  (Sec.  5517.)      Order  of  arrest  vacated. 

ITitle.-] 

On  motion  of  the  defendant,  and  it  appearing  to  the  court 
that  reasonable  notice  of  this  motion  has  been  given  to  the 
plaintiff,  and  for  good  cause  shown,*  the  order  for  the  arrest, 
of  the  defendant,  C.  D.,  is  hereby  vacated,  and  the  said  de- 
fendant is  discharged  from  the  arrest  made  under  said  order. 


-5532.]  ATTACHMENT.  177 

323.  (Sec.  5517.)     Amount  of  bail  reduced. 
[Title.] 

As  in  last  to  *,  and  continue:'] — it  is  ordered  that  the  bail 
taken  [or,  to  he  taken]  Ijv  the  sheriff  for  the  discharge  of  the 
said  C.  D.  from  arrest  in  this  action  he,  and  lierehy  is,  reduced 
to  ^ . 

324,  (Sec.  5456.)      Order  for  discharge  of  prisoner. 
[Title.] 

See  Entry  No.  300. 


CHAPTER  n. 

ATTACHMENT. 

Subdivision  III.  Execution  and  return  thereof. 

IV.  Disposition  of  attached  property. 

V.  Procef.dings  I  PON  attachment. 

VI.  Geneual  puovisions. 

SUBDIVISION  III. — Execution  and  return  thereof. 

Examination  of  garnishee — 

325.  (Sec.  5532.)     Order  for  sjiecial  examination. 

Examination  of  garnishee — 

The  method  of  obtaining  the  ordinary  examination  of  a  garnishee 
is  pointed  out  by  the  code,  and  no  order  of  court  is  required. 

Where  a  special  examination  of  a  garnishee  is  ordered,  it  is  compe- 
tent for  the  court  to  appoint  a  commissioner  to  take  the  same ;  it  is 
not  necessary  that  such  examination  should  be  had  in  open  court.' 

325.  (Sec.  553  J.)      Order  for  special  examination. 

[Title.] 

It  appearing  that  J.  II.  has  been  duly  served  with  notice 
:as  garnishee  in  this  case,  but  that  by  reason  of  illness  he  is 
unable  to  appear  in  court,  on  motion  of  the ,  the  court 

i  Whitman  v.  Keith,  18  Ohio  St.  134. 


178  JOURNAL    ENTRIES.  [SEC.  5533- 

hereby  appoints  S.  C.  a  special  master  commissioner  to  take 
and  certify  the  examination  of  the  said  garnishee  at  his  resi- 
dence ;  and  it  is  ordered  that  due  notice  of  the  time  and 
place  thereof  be  given  to  the  adverse  party. 

And  it  is  ordered  that  the  said  master  commissioner  make- 
due  return  of  his  proceedings  to  this  court. 

SUBDIVISION   IV. — Disposition-  ok  attached  property. 

320.   (Sec.  5539.)     Appointment  of  receiver. 

327.  (Sec.  5544.)     Order  for  sale  of  perishable  property. 

326.  (Sec.  5539.)  Appointment  of  receiver  to  take  possession 
of,  etc} 

ITitlcl 

On  motion  of  the ,  and  for  good  cause  shown,  it  is  or- 
dered that  E.  F.  be,  and  he  hereby  is,  appointed  receiver  in 
this  cause,  to  take  possession  of  all  notes,  due-bills,  books  of 
account,  accounts,  and  all  other  evidences  of  debt  that  have 
been  taken  by  the  sheriff,  on  an  order  of  attachment  issued 
in  this  action  against  the  said  C.  D.,  defendant,  and  to  do  all 
other  acts  authorized  by  law  necessary  in  the  case.  And  it  is 
ordered  that  the  undertaking  of  the  said  E.  F.  be  given  in 
the  sum  of  % ,  with  security  to  the  approval  of  the  clerk. 

And  now  came  the  said  E.  F.,  and  was  duly  sworn  as  such 
receiver. 

327.  (Sec.  5544.)     Order  for  sale  of  perishable  property. 

\_Title.'\ 

It  appearing  to  the  court  that  the  property  attached  in 
this  cause  is  perishable,  and  that  [or,  It  appearing  to  the 
court  that,  owing  to  the  cost  of  keeping  the  property  at- 
tached in  this  cause]  its  sale  would  be  to  the  benefit  of  all 
parties,  on  motion  of  the  said  plaintiff,  it  is  ordered  that  the 
sheriff  [or,  receiver  herein]  proceed  to  sell  the  said  property 
as  upon  execution  ;  and  that  a  credit,  with  good  security,  of 
months  be  allowed  to  the  purchasers  thereof. 

^For  orders  in  case  of  receivers  in  general,  see  post,  Keceiver. 


-5545.]  PROCEEDINGS    UPON    ATTACHMENT.  179 

SUBDIVISION  V. — Procbedinqs  upon  attachment. 
Counter  security. 

Garxishek — 

328.  (Sec.  5550.)     Garnishee  ordered  to  deliver  property  into  court. 

329.  (Sec.  5550  )     Ordered  to  pay  money  into  court. 

330.  Order  complied  with — garnishee  discharged. 

331.  (Sec.  5550.)    Order  permitting  garnishee  to  retain  property  or  money. 

Action  against  garnishee — 

333.  (Sec.  5551.)     Judgment  in  the  action  against  garnishee,  for  failure  to 

pay  over,  etc. 

334.  (Sees.  5551,  5552.)     Same,  upon  failure  to  answer,  or  when  answer  is 

not  satisfactory. 

Disposition  of  attached  property — 

335.  (Sec.  5553-4.)     When  judgment  is  rendered  for  defendant. 

336.  Order  applying  money,  after  judgment  for  plaintiff. 

337.  (Sec.  5553.)     When  judgment  is  rendered  for  plaintiff — order  that 

garnishee  pay  money  to  him. 

338.  (Sec.  5555.)     When  judgment  is   rendered  for  plaintiflF — order  for 

sale  of  attached  property. 

339.  Order  for  receiver  to  collect,  etc. 

340.  (Sec.  5557.)     Order  for  sheriflf  to  repossess  himself,  etc. 

341.  (Sec.  5559.)     Order  to  refer  question  of  priorities. 


Counter  security  [Sec.  5545] — 
See  under  Attachment  Discharged,  page  186. 

Garnishee — 

If  the  garnishee  do  not  appear  in  court  and  answer,  the  court  may 
proceed  against  him,  to  compel  the  same,  as  for  a  contempt;^  in  which 
case  the  usual  forms  for  proceedings  in  contempt  may  be  used.^  Or 
the  plaintiff  may  proceed  against  such  garnishee  by  a  civil  action."* 

If  it  appears  that  the  garnishee  has  in  his  hands  property  of,  or  money 
owing  to,  the  defendant,  the  court  may  order  the  delivery  of  the  prop- 
erty and  the  jiayment  of  the  money  into  the  court,*  either  before  or  after 
judgment.     It  may  be  ordered  delivered  or  paid  to  any  officer  of  the 

^  Code,  sec.  5549.  2  See  Contempts  op  Court. 

^  Code,  sec.  5551.  *Code,  sec.  5550. 


180  JOURNAL   ENTRIES.  [SEC.  5545- 

court — sheriff,  clerk,  or  receiver.  If  this  order  is  not  complied  with, 
the  pjaintiff  may  then  hring  an  action  against  the  garnishee.^ 

Section  5533  seems  to  contemplate,  if  not  directly  to  authoi-ize,  an  order 
by  the  court  for  the  payment  of  any  money,  due,  from  the  garnishee, 
directly  to  the  plaintiff;  as  it  provides  that  execution  may  issue  against 
the  garnishee  if  he  fails  to  pay  such  money  to  the  plaintiff  on  the  order 
of  the  court.  The  court  will  not,  however,  make  such  order  until  after 
judgment  for  the  plaintiff.^ 

328.  (Sec.  5550.)     Garnishee  ordered  to  deliver  property  into  court. 

[l^itle.-] 

It  appearing  from  the  answer  of  E.  F.,  garnishee  herein, 
that  he  has  in  his  possession  certain  property  of  the  said  C. 
D.,  on  motion  of  the  pkiintiff  it  is  ordered*  that  the  same  he 
delivered  to  the  sheriiF  of  this  county  \or,  to  G.  H.,  the  re- 
ceiver herein]  within days  from  the  date  of  this  entry. 

And  that  said  garnishee  be  thereupon  discharged. 

B29.  (Sec.  5550.)     Ordered  to  pay  money  into  court. 

[Title.] 

it  appearing  from  the  answer  of  E.  F.,  garnishee  herein, 

that  he  is  indebted  to  the  said  C.  I),  in  the  sum  of  $ ,  on 

motion  of  the  plaintiff"  it  is  ordered*  that  he  pay  said  sum  to 
the  clerk  of  this  court  [or,  to  G.  H.,  the  receiver  herein]  withiri 
days  from  the  date  of  this  order.  And  that  said  gar- 
nishee be  thereupon  discharged. 

330.   Order  complied  with,  garnishee  discharged. 

[Title.] 

l^ow  comes  E.  F.,  the  garnishee  herein,  and  delivers  into 
court  the  property  [or,  pays  into  court  the  money,  to  wit,  the 

sum  of  S ]  admitted  by  liim  to  be  in  his  liands  belonging 

[or,  to  be  owing]  to  the  said  C.  D.,  and  subject  to  the  order 
of  the  court.  And  thereupon  the  said  garnishee  is  discharged 
from  any  further  liability  herein. 


iCode,  sec.  5551. 
2  See  Entry  No.  337. 


T-5551.]  PROCEEDINGS    UPON    ATTACHMENT.  181 

331.  (Sec.  5550.)     Order  permitting  garnishee  to  retain  property 

or  money. 
[Title.] 

As  in  No.  328  or  329  to  *,  amf,  eontinue:]— that  the  said  E.  F. 
be  permitted  to  retain  the  said  goods  and  chattels  [or,  money] 
in  his  liands,  subject  to  the  orders  of  this  court,  upon  his  giv- 
ing to  the  plaintiff  an  undertaking  conditioned  according  to 

law  in  the  sum  of  $ ,  with  sureties  to  the  approval  of  the 

court. 

And  thereupon  came  the  said  E.  F.,  and  gave  his  under- 
taking accordingly,  with  L.  M.  and  S.  T.  as  sureties,  to  the 
api:)roval  of  the  court. 

Action  against  garnishee — 

Fiual  judginent  in  this  action  can  not  be  rendered  until  the  action 
against  the  defendant  in  attachment  has  been  determined.'  If  judg- 
ment is  rendered  for  defendant  in  attachment,  this  suit  must  be  dis- 
missed and  the  garnishee  will  recover  costs. ^  If  judgment  be  for  the 
plaintiff  in  attachment,  judgment  in  this  suit  may  be  rendered  against 
the  garnishee. 

333.  (Sec.  5551.)     Judgment  in  the  action  against  garnishee,  for 
failing  to  pay  over,  etc. 

[litur^ 

If  this  jaagm.ent  is  after  trial,  use  Finding  III.,  po.ge  99;  if 
on  defendant's  default,  use  Finding  IV.,  page  100,  and  continue:] 
— and  that  the  defendant  has  failed  to  comply  with  the  order 

of  the  court  made  in  said  case  Xo.  ,  directing  him  as 

garnishee  to  pay  certain  moneys  into  court,  and  that  he  has 
in  his  possession  as  such  garnishee,  and  is  liable  for,  the  sum 

of  ^ .     And  it  further  appearing  H:  that  this  plaintiff  has 

obtained  a  judgment  against  the  said  M.  X.  in  said  case  ISo. 

of  this  court  for  the  sum  of  $ ,  with  interest  and 

<30sts,  which  remain  due  and  unsatisfied: 

It  is  therefore  considered  by  the  court  that  the  said  plaintiff 

recover  from  this  defendant  the  said  sum  of  dollars,  so 

found  to  be  in  his  possession,  together  with  his  costs  herein 

1  Code.  sec.  5553. 


182  JOURNAL    ENTRIES.  [SEC.  5551- 

expen(led;t  and  that  said  sum  be  credited  on  the  judgment 
aforesaid  against  the  said  M.  jS". 

Or,  if  more  money  is  found  in  the  hands  of  the  garnishee  than  is 
sufficient  to  pay  the  claim  of  the  plaintiff  against  the  defendant  in  at- 
tachment, instead  of  the  last  sentence  of  the  judgment,  beginning  at 
T,  order  as  follows,  by  sec.  5552  : 

Order  substituting  defendant  in  attachment. 

fAnd  it  appearing  that  after  the  claim  of  the  plaintift'herein 
against  the  said  X.  M.  is  satisfied  there  will  still  remain  of  the 
mone}',  in  the  hands  of  this  defendant  as  such  garnishee,  the 
sum  of  S belonging  to  the  said  M.  X.,  it  is  therefore  or- 
dered, on  motion  of  the  said  M.  X.,  that,  as  to  said  balance, 
the  said  M.  IST.  be  substituted  for  the  plaintift'  in  the  judg- 
ment in  this  action  ;  and  that  he  have  execution  against  this- 
defendant  for  the  said  balance  of dollars. 

334.  (Sees.  5551  and  5552.)     Same,  upon  failure  to  answer,  or 

when  answer  is  not  satisjactory. 

[Title.'] 

If  this  judgment  is  after  trial,  use  Finding  III.,  page  99;  if 
on  defendant's  default,  use  Finding  IV.,  page  100,  and  continue  f] 
— and  that  the  defendant  has  not  complied  with  the  order  of 

the  court  made  in  case  Xo. directing  him  to  appear  and 

answer  therein  as  such  garnishee  [or,  that  the  defendant's, 
answer  as  garnishee  in  case  Xo. of  this  court  and  his  dis- 
closure are  not  satisfactory];  and  the  court  further  find  upon 
all  the  evidence  that  this  defendant  had  in  his  hands  at  the 
time  of  the  service  of  the  order  of  attachment  and  notice 
upon  him,  certain  moneys  as  garnishee  belonging  to  the  said 
defendant  in  attachment,  for  which  he  is  liable  to  this  plaintiff, 

to  wit,  the  sum  of  $ .     And  it  further  appearing,  etc. 

conclude  asfrom^,  in  last  entry. 

Disposition  of  attached  property. 

335.  (Sec.  5553-4.)      When  judgment  is  rendered  for  defendant. 
[Title:] 

Add  ti  judgment  entry  the  following :] 

It  is  further  ordcvod  tlr;t  the  attachment  in  this  case  be 


-5550.]  PROCEEDINGS    UPON    ATTACHMENT,  183 

discharged,  and  that  the  garnishee  recover  from  the  plaintiff 
Ills  costs  herein  expended,  also  that  the  attached  property  [oi-, 
tlio  proceeds  of  the  attached  property]  in  the  hands  of  the 
8herilf  be  returned  to  the  said  defendant. 

ooO.    Order  applying  money,  after  judfjment  for  plaintiff. 

[Tille.'\ 

It  appearing  that  tlic  garnishee  lierein  has  paid  into  court 
[o?-,  has  in  his  hands]  certain  money,  belonging  [o?-,  owing] 

to  the  said  C.  D.,  to  wit,  the  sum  of  3 ,  it  is  now,  on  motion, 

ordered  that  the  same  be  applied,  on  the  judgment  lierein, 
iirst  to  the  payment  of  the  costs  ;  and  that  the  balance  be  paid 
to  the  plaintiff,  or  his  attorney,  L.  li.,  as  a  credit  on  his  judg- 
ment. And  the  clerk  [or,  the  garnishee]  is  directed  to  pay 
over  said  money  in  accordance  herewith. 

337.  (Sec.  5553.)      When  judgment  is  rendered  for  plaintiff — or- 

der that  garnishee  pay  money  to  him. 

[Title.'] 

Add  to  judgment,  or  make  separate  entry,  as  foUoivs :] — And 
it  appearing  from  the  answer  of  E.  F.,  garnishee  herein,  that 

he  is  indebted  to  the  said   C.  D.  in  the  sum  of dollars, 

on  motion  of  plaintiff,  it  is  ordered  that  the  said  E.  F.  pay- 
said  sum  to  the  plaintiff,  A.  B.^  ;  and  that  the  same  be  ap- 
plied as  a  credit  upon  his  judgment  against  this  defendant. 
And  in  default  of  such  payment  execution  is  awarded  there- 
for. 

338.  (Sec.  5555.)      When  judgment   is   rendered  for  plaintiff- 

order  for  sale  of  attached  property. 
[Title  ?^ 

Add  to  the  judgment  entry  the  following  order :] 
And,  on  motion  of  the  said  plaintiff,  it  is  ordered  that  the 
sheriff  proceed,  as  upon  execution,  to  advertise  and  sell  the 
personal  property  [or,  real  estate]  heretofore  attached  iii  this 
action,  and  now  in  his  hands  remaining,  or  so  much  thereof 
as  will  satisfy  the  judgment  and  costs  aforesaid. 

1  See  poc.  ooo':!,  and  page  ]80,  ante. 


184  JOURNAL    ENTRIES.  [SEC.  5557- 

In  case  of  sale  of  real  estate  add:'] — and  that  he  report  his 
proceedings  to  this  court  for  confirmation. 

The  subsequent  decree  of  cODfirniation  is  similar  to  that  iu  case  of 
other  judicial  sales.     See  Decree  No.  225. 

For  proceedings  in  contempt,  to  compel  the  delivery  to  the  sheriff, 
for  sale,  of  the  attached  property,  under  section  5556,  see  entries  under 
Contempts  of  Court. 

If  mere  evidences  of  indebtedness,  such  as  notes,  dued^ills,  or  ac- 
counts, have  been  attached,  they  will  not  be  sold,  but  the  proper  rem- 
edy is  for  a  receiver,  or  the  sheriff  acting  as  such,  to  settle  and  collect 
the  debts.  Notice  is  to  be  given  to  the  debtors,  and  the  debts  collected 
by  action.^  If  a  receiver  has  already  been  appointed,  he  inay  be  or- 
dered to  collect.  If  none  has  been  api:)ointed,  the  following  order  may 
be  made : 

339.  Order  for  a  receiver  to  collect,  etc. 
[Title.] 

It  appearing  to  the  court  that  part  of  the  property  attached 
in  this  action,  and  now  held  by  the  sheriff,  consists  of  notes, 
due-hills,  and  accounts  due  the  defendant  herein  from  sundry 
individuals,  it  is  ordered  that  A.  R.  he,  and  he  hereby  is,  ap- 
pointed receiver  to  take  charge  of  all  such  evidences  of  in- 
debtedness ;  and  said  receiver  is  hereby  authorized  and  di- 
rected to  bring  actions  against  the  persons  so  indebted  to  the 
defendant,  and  to  collect  and  hold,  subject  to  the  further  or- 
der of  this  court,  the  amounts  due.  And  it  is  ordered  that 
the  said  A.  E.  before  entering  upon  his  duties  as  aforesaid, 

give  an  undertaking  in  the  sum  of dollars,  with  security 

to  the  apYtroval  of  the  clerk. 

Or,  the  order  may  be  that  the  sheriff  acting  as  receiver  shall  make 
the  collections. 

340.  (Sec.  5557.)      Order  for  sheriff  to  7^epossess  himself,  etc. 
['Jiflc] 

It  appearing  to  the  court  that  certain  of  the  goods  and 
chattels  attached  by  the  sheriff  in  this  case,  to  wit  [here  state 

1  Finnell  r.  Burt,  2  Handy,  203. 


-5561.]  ATTACHMENT — GENERAL    PROVISIONS.  185 

property],  have  passed  out  of  his  hands  without  having  been 
sold  or  converted  into  money  : 

Xow,  on  motion  of  the  said  plaintiff,  it  is  ordered  that  tlie 
said  sheriff  repossess  himself  of  said  property,  as  under  an 
order  of  attacliment. 

•  )41.  (Sec.  5559.)     Order  to  refer  question  of  priorities. 

[  7'itle.] 

It  appearing  to  tlie  court  that  several  attachments  have 
heeu  executed  on  the  property  attached  in  this  case  [or,  that 
the  garnishees  herein  have  been  garnisheed  in  other  cases], 
on  motion'  of  the  plaintiff  herein,  by  his  attorney,  it  is  or- 
dered tliat  the  matter  be,  and  it  hereby  is,  referred  to  E.  F., 
to  ascertain  and  report  to  the  court,  without  unnecessary  de- 
lay, the  amounts  and  priorities  of  the  several  attachments. 

The  report  of  the  referee  should  be  confirmed  by  the  court.     See 
Entry  No.  151. 


SUBDIVISION  VI.— General  provisions. 

Additional  si;cl'RITY — 

342.  (Sec.  5561.)     Order  for. 

Attachment  discharged — 

o43.  (Sec.  5545.)     By  counter  security — order  approving  bond. 

344.  (Sec.  55t)2.)     Order  discharging,  on  motion. 

Additional  security — 
'M2.  (Sec.  5561.)     Order  for. 

[Title.] 

On  motion  of  the  defendant,  and  due  notice  given,  and  it 
appearing  that  the  surety  in  the  plaintiff's  undertaking  in 
attachment  herein  has  removed  from  the  state  [or,  is  not  suf- 
ficient for  the  amount  thereof],  it  is  ordered  that  unless, 
within days  from  this  time,  good  and  suificient  security 

1  It  is  error  to  make  a  subsequent  attachinj:^  creditor  a  party  to  the  action  of 
a  prior  attachinnr  creditor,  on  the  <:;i-ound  of  his  interest  acquired  b}'  the  levy.^ 
His  re.^^elly  is  by  motion.  Ward  v.  Howard,  12  Ohio  St.  158;  Harrison  v.. 
Kin-,  '.)  Cihio  St.  3S8. 


186  JOURNAL    ENTRIES.  [sEC.  5562- 

be  given  by  the  plaintiff,  that  then  the  said  attachment  stand 
vacated  and  discharged,  and  that  the  sheriff  then  return  to 
the  defendant  any  property  taken  under  the  said  attach- 
ment. 

Attachment  discharged — 

Two  methods  are  provided  by  the  code  for  discharging  an  attach- 
ment before  judgment.  Counter  security,  to  be  approved  by  the 
court/  or,  in  vacation,  by  the  clerk  or  sheriff,'  may  be  given  by  the  de- 
fendant to  the  plaintiff,  which  security  will  be  taken  as  an  equivalent 
for  the  property ;  ^  the  discharge  and  restitution  and  discharge  of  the 
garnishee  following  as  of  course. 

Or  the  discharge  may  be  by  order  of  court,  on  the  motion  of  the  de- 
fendant.'* The  execution  of  the  undertaking  does  not  estop  the  de- 
fendant from  moving  to  discharge  the  attachment.^ 

There  are  cases  where,  on  motion  by  defendant,  an  attachment  will 
be  discharged  as  to  a  part  of  the  property  attached.'' 

343.  (Sec.  5545.)      Counter  security — order  (qrproving  bond, 
\^Title.'\ 

Now  came  the  defendant,  by  his  attorney,  and  presented 
to  the  court  his  undertaking  for  the  discharge  of  the  attach- 
ment issued  herein,  with  E.  F.  and  G.  II.  as  sureties,  to  the 
approval  of  the  court,  in  the  sum  of  $ . 

And  the  said  attachment  is  accordingly  discharged,  and 
restitution  ordered  of  the  property  taken  under  it  by  the  said 
sheriff. 

If  the  undertaldng  is  jor  the  release  of  a  garnishee,  also  add  •] 
— and  the  said  garnishee  is  discharged  from  all  liability  in 
this  action. 

344.  (Sec.  5562.)      Order  discharging,  on  motion. 
[Title.-] 

On  motion  of  the  defendant,  and  due  consideration  thereof 
had,  it  is  ordered  that  the  attachment  in  this  action  be,  and 

1  Code,  sec.  5545.  'Code,  sec.  5546. 

^  Egan  V.  Lumsden,  2  Disney,  168.  ' 

*Code,  sec.  5562. 

^  Northern  Bank  of  Kentucky  v.  Nash,  1  Handy,  153. 


-5570.]         ATTACHMENT  BEFORE  DEBT  DUE.  187 

the  same  hereby  is,  discharged,  and  the  sheriif  ordered  to  re- 
store to  the  defendant  the  property  taken  under  said  attach- 
ment. 

If  there  is  a  garnishee,  adi  or  substitute:] — and  the  garnishee 
is  released  from  all  liability  in  this  action. 


CHAPTER  in. 

ATTACHMENT  BEFORE  DEBT  DUE. 
345.  (Sec.  5565.)     Order  allowing  attachment. 

In  an  action  before  the  debt  is  due,  an  order  of  attachment  can  only 
1)0  issued  by  order  of  court,  or  of  a  judge  thereof." 

It  is  proper  jjractice  to  dismiss  the  actiou,  where  an  attachment  ob- 
tained on  a  debt  not  due  is  discharged  ;^  but  it  is  matter  of  discretion 
with  tlie  court  whether  tlie  actiou  shall  be  dismi.«sed  or  allowed  to  pro- 
ceed, after  the  debt  becomes  due.  It  is  proper  to  dismiss  it,  unless 
special  reasons  to  the  contrary  are  shown. ^ 

345.  (Sec.  5565.)     Order  allowing  attachment. 

[Title:] 

On  application  of  the  plaintiff  herein,  and  proper  showing 
being  made,  an  order  of  attachment  is  allowed  to  issue  in 
this  case,  in  the  sum  of  S ,*  on  plaintiff  giving  an  under- 
taking, as  provided  by  law,  in  the  sum  of  S J" 

^  Code,  sec.  5565. 

2  Heidenlieimer  v.  Ogborii,  1  Disney,  351. 
^  Ramsey  v.  Overaker,  1  Disney,  5G9. 

*Not  exceeding  a  sum  sufficient  to  satisfy  the  plaintiff's  claim  and  the  prob- 
able costs  of  the  action.     Sec.  5567. 

*  Not  exceeding  double  the  amount  of  the  plaintiff's  claim.     Sec.  5568. 


188  JOURNAL    ENTRIES.  [SEC.  5571- 


CHAPTER  IV. 

INJUNCTION. 
Restraining  order — 

346.  (Sees.  5574,  5575.)     Restraining  order  allowed. 

iN.irXCTlOX    AS    A    PROVISIONAL    REMEDY— - 

347.  (Sec.  5573.)     Order  allowing. 

348.  (Sec.  5581.)     Fine  for  disobedience  imposed,  etc. 

Security — 

349.  (Sec.  5582.)  Order  for  additional  security. 

350.  (Sec.  5584.)  Order  vacating  injunction. 

351.  (Sec.  5584.)  Order  modifying. 

Injunction  as  a  final  judgment — 

352.  Temporary  injunction  made  perpetual. 

353.  Decree  for  injunction. 

The  injunction  provided  for  in  the  code  is  either  a  final  judgment  in 
an  action,  or  Is  allowed  as  a  provisional  remedy,^  during  the  iDendency 
of  the  suit.  In  the  latter  case  it  is  an  order. ^  The  code  also  provides 
for  a  temporary  restraining  order.^ 

Restraining  order — 

A  restraining  order  may  be  granted  ex  parte}  A  bond  is  usually 
required,  as  in  case  of  a  provisional  injunction.  Its  continuance  will 
be  limited  by  the  order  creating  it ;  generally  to  a  time  fixed  for  the 
hearing  of  the  application  for  a  provisional  injunction,  and  until  fur- 
ther order  of  court.  No  appeal  lies  for  dissolving  a  restraining  order. 
It  may  be  granted  by  the  court  or  by  a  judge,  and  may  be  enforced 
in  the  same  manner  as  an  injunction.*  When  it  is  applied  for,  on  fil- 
ino-  of  the  petition  and  allowed,  ex  jiaHe  the  judge  often  indorses  the 
allowance  on  the  back  as  follows : 

"A  restraining  order  is  allowed  to  issue  as  prayed  for  herein 
until  [name  date;  or  say,  until  further  order  of  court]  on  plaint- 

1  Code,  sec.  5571.  ^  Sees.  5572,  6574,  5575,  5581. 

3  Code,  sees.  5574,  5575.  *  Sec.  5581. 


-5580.]  INJUNCTION.  189 

iff  giving  an  undertaking,  conditioned  according  to  law,  in 
the  sum  of" "dollars." 


This  order  should  also  bi;  })ut  iipou  tlie  minutes  of  the  court.  At 
other  times  the  entry  will  be  as  follows ; 

346.  (Sees.  5574  and  5575.)     Restraininfj  order  alloived. 
[7itle.] 

On  application  of  the  plaintiff  herein  for  an  injunction  in 
this  case,  it  is  ordered  that   said  application  be  set  down  for 

hearing  on  the inst.,  at  10  o'clock  a.  m.,  in  room  N'o.  1 

of  the  Common  Pleas  Court,  and  in  the  meantime,  and  until 
further  order  of  court,  a  restraining  order  is  allowed  as  prayed 
for  in  the  petition  [or,  restraining  the  defendant,  C.  D.,  from 
(state  acts)'],  upon  plaintiff  giving  an  undertaking  according 
to  law  in  the  sum  of  ^ . 

Injunction  as  a  provisional  remedy — 

An  injunction  can  not  be  granted  after  answer  without  notice.'  And 
in  any  event  the  court  may  re(juire  notice  to  be  given  before  allowing 
it.'  But  if  no  answer  has  been  filed,  the  court  may,  in  their  discre- 
tion, grant  it  ex  ])arte.     An  order  dissolving  it  may  be  appealed  from.* 

Disobedience  of  an  injunction  may  be  j)unished  as  a  contempt,  by 
the  court,  or  by  any  judge  who  might  have  granted  it  in  vacation.* 
See  Proceedings  in  Contempt. 

When  a  temporary  injunction  has  been  allowed,  and  the  complaint 
in  the  action  i-<  subsequently  dismissed,  the  injunction  ipm  facto  falls 
with  it.^ 

347.  (Sec.  5573;  85  O.  L.  151.)     Order  allowing  injunction. 

[rule.] 

On  motion  of  the  plaintiff,  by  his  attorney,  and  good  cause 
being  shown  therefor,  it  is  ordered  that,  on  an   undertakiiii,^ 

being  given  in  the  sum  of  $ ,  with  sureties  to  the  approval 

of  the  clerk,  an  injunction  be  allowed  to  issue  herein,  enjoin- 
ing the  said  defendant  from  [state  acts  enjoined'],  until  the  fur- 
ther order  of  this  court. 

'Cude,  sec.  5575  *Code,  sec.  5574.  ^Src.  5226,  82  0.  L   32 

*Code,  sec.  5581.  *Hoyt  v.  Carter,  7  Howard,  140. 

13 


190  JOURNAL    ENTRIES.  [sEC.  5581- 

348.  (Sec.  5581.)  Fine  for  disobedience  imposed,  and  order  of 
restitution. 

[Title.'] 

Now  came  the  said  C.  D.  in  obedience  to  the  rule  of  the 
court  [or,  in  custody  of  the  sherifi';  or,  in  accordance  with 
his  undertaking  of  bail  to  the  sheriff],  and  was  examined 
under  oath  touching  his  alleged  disobedience  of  the  injunc- 
tion of  the  court  herein ;  and  on  consideration  thereof  the 
court  iind  him  guilty  of  the  same,  and  that  he  is  thereby 
guilty  of  a  contempt. 

It  is  therefore  adjudged  that  the  said  C.  D.  pay  a  fine  of 

dollars  and  the  costs  of  this  proceeding,  and   execution 

is  awarded  therefor. 

And  it  is  further  ordered  that  the  said  C.  I),  make 
immediate  restitution  to  the  said  A.  B.  by  [state  lion-^, 
and  that  he  enter  into  a  further  undertaking  in  the  sum  of 

$ to  the  said  A.  B.,  with  good  security  to  the  acceptance 

of  the  clerk  of  this  court,  that  he  will  obey  said  injunction 
as  heretofore  allowed. 

And  in  default  of  performing  any  of  the  above  require- 
ments, it  is  ordered  that  the  said  C.  D.  stand  committed  to  the 

sheriff  of county,  to  be  kept  in  close  custody  until  he 

shall  fully  comply  with  the  said  order,  or  be  otherwise  legally 
discharged. 

Security — 

If  it  appear  that  the  surety  ui  the  undertaking  has  removed  from  the 
state,  or  is  not  sufficient,  additional  security  may  be  ordered. 

The  court,  in  continuing  an  injunction,  may  YQ(\\x\Ye.  additional  or  new 
security  to  be  given,  or  a  bond  with  new  and  enlarged  conditions ;  and 
so  the  court  may  order  the  new  bond  to  be  given  in  the  place  of,  and 
as  a  substitute  for  the  former  bond,  wliich  may  be  thereby  discharged 
without  the  consent  of  the  obligee.  But  if  such  order  be  not  substan- 
tially complied  with,  as  where,  by  mistake  of  the  clerk,  the  new  bond 
is  conditioned  merely  for  the  payment  of  the  costs,  the  former  bond  is 
not  discharged.^ 


1  Kent  V.  Bierce,  6  Ohio,  336. 


-5584.]  INJUNCTION.  191 

349.  (Sec.  5584.)      Order  for  (i<hlitional  security. 

ITitle.'] 

On  motion,  and  it  appearing  to  the  court  that  the  security 
heretofore  given  on  the  injunction  allowed  herein  is  insuffi- 
cient [or,  that  the  surety  in  the  undertaking  has  left  the 
state],  it  is  ordered  that  an  additional   undertaking  in   the 

sum  of dollars,  to  the  approval  of  the  clerk  of  this  court, 

he  given  within days;  and  in  default  thereof,  that  the 

injunction  stand  vacated  and  dissolved. 

S50.  (Sec.  5584.)      Order  oacatin(j  injunction} 

[Title.'] 

This  cause  being  heard  on  the  motion  to  vacate  the  pro- 
visional injunction  herein,  the  court,  on  consideration,  grant 
the  same,  and  the  said  injunction  is  hereby  vacated  and  dis- 
solved, 

351.  (Sec.  5584.)      Order  modifying. 
[Title.'] 

This  cause  being  heard  on  the  motion  to  vacate  the  pro- 
visional injunction  herein,  the  court,  on  consideration,  order 
that  the  said  injunction  be  modified,  and  is  hereby  so  changed 
as  to  allow,  etc.  [specify.] 

Injunction  as  a  final  judgment — 

A  temporary  injunction  may  be  made  perpetual,  or  the  injunc- 
tion, as  Ji  final  judgment,  may  be  made  as  an  independent  decree. 
If  in  either  case  an  appeal  is  taken  and  judgment  suspended,  see 
entry  157a. 

352.  Temporary  injnnction  made  perpetual. 
[Title.] 

Now  came  the  parties  herein,  by  their  attorneys,  andthere- 
npon  this  cause  came  on  for  hearing  on  the  pleadings  and 
■evidence,  and  was  submitted  to  the  court;  on  consideration 
whereof,  the  court  find,  on  the  issue  joined,  for  the  plaintiff 
[or,  that  the  allegations  of  the  petition  are  true],  and  that  the 
phiintiff'is  entitled  to  the  relief  prayed  for.  * 

It  is  therefore,  on  motion  of  the  plaintifl',  adjudged  and 
decreed  that  the  injunction  heretofore  granted  in  this  action 
be,  and  the  same  hereby  is.  made  perpetual.     It  is  further 

^If  an  appeal  is  taken  from  this  order  see  pages  76a  and  77. 


192  JOURNAL   ENTRIES.  [sEC.  5584- 

con<idered  that  the   said  ph^intiff  recover  from  the  said  de- 
fendant his  costs  herein  expended,  taxed  at  $ . 

353.  Decree  for  wjunction. 

ITitle.-] 

As  in.  last  to  *,  and  continue:'] — It  is  therefore  considered 
and  decreed  that  the  defendant,  C.  D.,  he,  and  he  hereby  is, 
perpetually  enjoined  from  \Jicre  state  special  acts'].  It  is  fur- 
ther considered  that  the  plaintiff  recover  from  the  said  de-- 
fendant  his  costs  herein  expended,  taxed  at  $ . 


CHAPTER  V. 

RECEIVEESHIP,  AND  OTHER  PROVISIONAL  REMEDIES.. 

Receiver — 

354.  (Sec.  5.587.)     Order  appointing. 

355.  (Sec.  5590.)     Order  for  receiver  to  bring  suit. 

356.  Order  allowing  action  against. 

357.  (Sec.  5591.)     Ordered  to  invest  money. 

358.  Order  confirming  report,  and  discharging  receiver. 

Goods  ix  custody  of  receiver — 

359.  Order  for  sheriff  to  withdraw  levy. 

360.  Order  permitting  levy. 

Property  het.d  by  party  as  trustee — 

361.  (Sec.  5592.)     Order  for  deposit  of. 

362.  (Sec.  5593.)     Order  for  delivery  of,  enforced. 

Receiver — 

When  the  motion  for  a  receiver  has  been  made  by  counsel,  and  al- 
lowed, care  should  be  taken  in  drawing  the  order  for  his  appointment, 
that  it  contain  and  explain  fully  his  powers.^  The  order  should  al.'^o 
state  distinctly  over  what  property  the  receiver  is  appointed,  that  a 
party  may  know  what  it  is  that  the  officer  of  the-  court  is  in  posses- 
sion of.* 

1  See  Edwards  on  Receivers,  79. 

2  Crow  ?•.  Wood,  13  Rpvan.  271. 


-5589.]  RECEIVERSHIP,    ETC.  193 

If  the  appointment  of  ii  receiver  is  over  real  or  leasehold  estate,  the 
order  usually  directs  the  parties  to  the  record  who  are  iu  possession,  not 
as  tenants,  l)ut  as  owners,  to  deliver  up  to  him  the  possession.' 

It  is  also  well  enough  to  order  all  persons  having  control  of  property 
or  rents  to  pay,  belonging  to  the  receiver,  to  pay  the  same  over  to  him 
on  demand,  as  this  is  the  readiest  means  of  conveying  the  order  of  the 
court  to  the  understanding  of  the  person  having  such  control. 

A  receiver  is  an  officer  of  the  court,  and  his  possession  is  that  of  tlie 
court, '^  and  can  not  be  interfered  with  without  leave  of  tlie  court.  A 
suit  against  a  receiver  can  be  brought  by  leave  of  the  court  appointing 
him.''*  Notice  of  the  application  should  be  given  to  the  receiver,  but 
it  is  not  essential  that  it  be  given  to  the  parties  to  the  action  in  which 
he  was  apj)ointed.* 

554.  (Sec.  5587,  82  O.  L.  35.)     Order  appointing  receiver. 

[Title.] 

And  now  this  cause  came  on  to  be  heard  upon  the  motion 

of  the for  tlio  api)ointment  of  a  receiver  herein.     And 

thcroui)on  the  court  find  that  the  partnership  existing  be- 
tween the  parties  to  this  action  is  one  dissolvable  at  will,  and 

that  the is  neglecting  the  business  of  the  firm,  whereby 

there  is  danger  of  the  property  of  the  said  firm  being  lost ; 
![or  state  any  other  facts,  as  the  case  requires]. 

It  is  therefore  ordered  that  E.  F.  be,  and  he  is  hereby,  ap- 
pointed receiver  of  all  the  debts,  property,  equitable  inter- 
ests and  things  in  action  belonging  to  said  firm ;  that  said 
receiver,  upon  being  duly  qualified,  proceed  to  collect  the 
debts  of  the  firm,  etc.  [.v^(//c  any  special  order  to  the  receiver,  as 
called  for  by  si^ction  5590,  or  otherwise'].  And  the  said  parties 
here,  and  all  other  persons  having  any  of  said  property  in 
their  possession  or  under  their  control,  are  hereby  ordered  to 
deliver  the  same,  and  all  persons  owing  any  such  money  be- 
longing to  said  firm  are  hereby  directed  to  pay  over  the  same, 
to  the  said  E.  F.,  as  such  receiver,  on  his  demand. 

'  Griffith  V.  Griffith,  2  Ves.  401. 

'■'Spinning  r.  Ohio  Life  Ins.  Co.,  2  Disney,  336. 

3  Murphy  V.  Holbrook,  20  Ohio  St.  137. 

*  Potter  V.  Bunnell,  20  Ohio  St.  150. 


194  JOURNAL    EXTRTES.  [>EC.  OoOO- 

And  it  is  ordered  that,  before  cutc'riiig-  upon  liis  duties, 
such  receiver  execute  to  the  plaintiff  lierein  [or  stick  person 
as  the  court  may  direct]  an  undei'taking-,  conditioned  accord- 
ing to  Uiw,  in  the  sum  of  $ . 

And  now  came  the  said  E.  F.,  and  presented  his  undertak 
ing,  with  J.  K.  and  L.  M.  as  sureties,  to  the   approval  of  the 
court,  and  was  duly  sworn  as  such  receiver. 

355.  (Sec.  5590.)     Order  for  receirer  to  tmng  salt. 

ITitle.'] 

It  appearing  to  the  court  that  E.  F.,  the  receiver  herein, 

claims  that  S.  T.  is  rightly  indebted   to  the  in  this  case 

in  the  sum  of  | [or,  that  the  receiver  herein   holds  the 

promissory  note  of  S.  T.,  now  past  due,  for  the  sum  of  S ], 

the  court  does  now,  upon  the  application  of  said  receiver, 
authorize  and  direct  him  to  bring  an  action  against  the  said 
S.  T.  for  the  recovery  of  the  said  sum  of  % ,  with  the  in- 
terest thereon. 

355.   Order  allowhu/  action  ar/ainst  a  receiver. 

[7Vle.] 

ISTow  comes  R.  S.,  and  moves  the  court  for  leave  to  bring 
an  action  against  the  receiver  heretofore  appointed  by  this 
court  in  this  cause;  on  consideration  whereof,  the  court 
grant  the  same,  and  allow  the  said  E.  S.  to  lile  his  petition 
forthwith. 

357.  (Sec.  5591.)     Order  for  receiver  to  invest  nioneij. 
[Title  ?^ 

On  motion,  and  by  consent  of  all  the  parties  to  this  action, 
it  is  ordered  that  the  receiver  in  this  action  invest  the  funds 
in  his  hands  as  such  receiver  in  [specify  investment],  and  hold 
the  same  subject  to  the  orders  of  this  court. 

358.  Order  confirming  report,  and  discharyiny  receiver. 
[Title.-] 

This  cause  coming  on  to  be  heard  upon  the  motion  to  con- 
firm the  final  report  of,  and  to  discharge  the  receiver  herein, 
it  is  ordered,  on  motion  of  the  said'  receiver,  that  he  be  al- 


-O-V.)!.]  IlECEIVERSUIP,    ETC.  105 

lowed  and  paid  the  sum  of dollars  out  of  the  money  in 

lii.s  hands,  in  full  for  his  services  herein.  And  the  court  find- 
ing the  said  report  correct,  and  that  the  said  receiver  has 
fully  oljeyed  the  orders  of  the  court  to  him  issued,  and  has 
duly  paid  over  all  moneys  coming  into  his  hands  as  such  re- 
ceiver : 

It  is  therefore  ordered  that  all  acts  and  things  done  hy  him, 
as  wi'll  as  his  said  report,  he,  and  they  hereby  are,  approved 
and  confirmed;  and  the  said  E.  F.  is  discharged  from  his 
duties,  liabilities,  and  responsibilities  as  such  receiver,  and 
his  undertaking  therefor  is  vacated  and  canceled. 

Goods  ix  custody  of  a  receiver — 

If  a  sheriff  inukc  a  levy  upon  property  iu  the  custody  of  a  receiver 
of  the  court,  he  may  l)e  ordered  to  withdraw  his  levy,  and  answer  to 
the  court  for  a  contempt  iu  making  it.' 

But  it  seems  the  court  may  properly  permit  a  levy,  so  as  to  enable 
the  judgment  creditor  to  secure  any  rights  to  the  property  which  a 
levy  would  give,  in  the  event  the  claims  in  the  action,  in  which  the  re- 
ceiver was  appointed,  should  not  be  prosecuted,  or  should  not  be  sus- 
tained.' 

359.  Order  for  sheriff  to  withdraw  levy. 
\_Title.'] 

It  appearing  that  the  sherifi'  of  this  county  has  made  a 
levy  upon  certain  property  in  the  hands  of  the  receiver  in 
this  action,  without  permission  of  the  court,  it  is,  on  motion, 
ordered  that  he  withdraw  the  same  forthwith. 

It  is  further  ordered  that  the  saidsherifF  appear  before  this 
court,  on  the  day  of ,  and  show  cause  wh}'  an  at- 
tachment should  not  issue  against  him  as  for  a  contempt  of 
court  in  making  said  levy. 

For  further  proceedings  in  contempt,  see  Contempt  of  Court. 

360.  Order  'permitting  levy. 
[Title.'] 

On  motion  of  the  plaintifi",  by  his  attorney,  he  is  hereby  al- 

» Coe  V.  C,  P.  &  I.  R.  R.  Co.,  10  Ohio  St.  403. 


196  JOURNAL   ENTRIES.  [SEC.  5592- 

lowed  to  levy  an  execution,  on  the  judgment  in  this  case,  on 
the  property  of  defendant,  now  in  the  hands  of  E.  F.,  re- 
ceiver of  this  court,  for  the  purpose  of  obtaining  a  lien 
thereon. 

Property  held  by  party  as  trustee — 

361.  (Sec,  5592.)     Order  for  deposit  of. 
I'litle.] 

It  appearing  from  the  answer  [or,  examination]  of  J.  H. 
that  he  has  in  his  possession  [or,  under  his  control]  certain 

money,  to  wit,  the  sum  of doUars,  belonging  to  E.  F., 

which  is  the  subject  of  this  litigation,  and  which  the  said 
J.  11.  holds  as  trustee  of  the  said  E.  F.,  it  is  now,  on  motion 

of ,  ordered  that  the  same  be  deposited  with  the  clerk  of 

this  court,  subject  to  the  further  order  of  court.  [Or,  deliv- 
ered to  the  said  E.  F.,  upon  his  giving  security  to  the  ap- 
proval of  the  court  that  the  said  money  shall  be  forthcoming, 
subject  to  the  further  orders  of  court.] 

362.  (Sec.  5593.)     Order  for  delivery  of,  enforced. 
[Title.'] 

It  appearing  to  the  court  that  S.  P.  has  property  in  his  pos- 
session, which,  under  the  former  order  of  this  court,  he  was 
required  to  deliver  to  the  said  receiver  [or  to  any  other  'person'] 
in  this  action ;  and  it  further  appearing  that  the  said  S.  P. 
has,  on  demand,  refused  to  make  such  delivery : 

It  is  therefore  ordered  that  the  sheriff  of  this  county  do 
forthwith  proceed  to  take  the  said  property  and  deliver  [or, 
deposit  the  same  in  conformity  with  the  former  order  of  this 
court. 

And  it  is  further  ordered  that  an  attachment  be  issued, 
commanding  the  sheriff'  to  arrest  and  bring  the  said  S.  P.  be- 
fore this  court,  on  the day  of ,  to  answer  for  this, 

his  neglect  and  refusal,  as  for  a  contempt  of  court. 

For  further  proceedings  in  attachment,  see  Contempts  of  Court. 


-5594.]  AMERCEMENT.  197 


DIYISIOX  VII. — Special  Proceedings. 

CHAPTER  I.  Amercement. 

II.  Arbitr.\tiox. 

III.  Bastardy. 

IV.  Co.NTEMPTS    OF    COCRT. 

V.  Dl.SSOLLTlON    OF    CORPORATIONS. 

VI.  Divorce  and  alimony. 

VII.  DOWEU. 

VIII.  IIabkas  corpus. 

IX.  Partition. 

X.  Real  actions. 

XI.  Replevin. 

XII.  SuRETIE.S — RIGHTS    AND    RE.MEDIES    OF. 

XIII.  TaXE.S    and    assessments— RELIEF    AGAINST    ILL   <ii , 

XIV.  To    CHANGE    NAME. 
XV.  To    CONTEST    WILL. 

XVI.  To    CUKE   CERT.UN    DEFECTS,    ERRORS,  AND    OMISUilONS. 

XVII.  To    PERPETUATE    TESTIMONY. 

XVIII.  Watercraft. 

XIX.  Wreckmasters. 


CHAPTER  I. 

AMERCEMENT. 

'363.  (Sec.  5594.)  For  failing  to  execute  a  writ  of  execution,  etc. 

364.  (Sec.  5594.)  For  failing  to  pay  over  money. 

365.  (Sec.  5596.)  For  failing  to  execute  order  or  process. 

366.  (Sec.  5597.)  Amercement  of  clerk. 

367.  (Sec.  5599.)  Judgment  making  surety  a  party  to  a  judgmewt,  etc. 

368.  (Sec.  5600.)  Officer  amerced  allowed  to  sue  out  execution. 

It  seems  that  in  a  proceeding  of  amercement  no  pleadiiigs  after  the 
notice  are  required.^     It  is  on  motion,  and  not  on  pleadings.-     But  the 

1  Wadsworth  ?•.  Parsons,  6  Ohio,  449. 
"  Armstrong  v.  Grant,  6  Kan.  285. 


198  JOURNAL    ENTRIES.  [sEC.  r)494- 

facts  which  wjirrant  the  judgment  of  the  court  must  be  set  out  iu  the 
motion  and  appear  upon  the  record.' 

The  amount  for  which  a  sheriff  is  to  be  amerced  for  neglecting  to 
serve  final  process  is  ascertained  by  adding  to  the  amount  of  the  judg- 
ment debt  interest  which  has  accrued  thereon  and  the  costs;  and  then 
add  ten  per  centum  upon  the  whole  amount  so  made  up  of  the  judg- 
ment debt,  interest,  and  costs,  which  makes  up  tlie  true  amount  of  the 
judgment  to  be  rendered  on  the  amercement ;  and  this  judgment  of 
amercement  draws  interest  like  other  judgments.' 

363.  (See.  5594.)     Amercement  of  officer  for  failing  to  execute  a 

vmt  of  execution,  etc. 

[ntle.'] 

And  now  tliis  cause  came  on  for  liearing  on  the  motion  of 
the  plaintiff  for  the  amercement  of  the  sheriff  [or,  other  of- 
ficer] of  this  county;  and  due  legal  notice  of  said  motion 
having  heen  given  to  him,  the  court,  on  consideration  of  the 
premises,  find  that  the  said  sheriff  [or,  other  officer],  M.  K., 
has  refused  ["/■,  neglected]*  to  execute  the  writ  of  execution 

on  the  judgment  rendered  in  this  action,  on  the day  of 

^  for  % damages  and  costs,  which  said  execution  was 

issued  in  due  form,  and  delivered  to  him,  the  said  sheriff,  on 

the day  of [or,  state  any  other  facts  comivg  within  the 

statute],  and  that  he  is  liable  to  amercement  therefor  in  the 

sum  of  $ ,  being  the  amount  of  said  damages  and  costs, 

with  a  penalty  of  ten  per  cent  thereon. 

It  is  therefore  ordered  that  the  said  ]SI.  X.,  sheriff,  be 
amerced  for  this  said  refusal  [or,  neglect]  in  the  said  sum  of 

dollars;  and  that  the  said   plaintiff'  recover  the  same, 

together  with  his  costs  herein  expended,  from  the  said  M.  X., 
according  to  the  force  and  effect  of  the  statute  in  such  case 
made  and  provided. 

364.  (Sec.  5594.)     Amercement  for  failure  to  pay  over  money. 
[Title.] 

As  in  last  to  *,  and  continue:'] — to  pay  over  to  this  plaintiff 
certain  moneys  received  by  him  in  his  official  capacity,  for 

1  Graham  v.  Nowton,  12  O.  210. 


-OoOO.]  AMERCEMENT.  199 

tlic  use  of  said  plaintiff,   to   wit,   tlic   sum  of  S ,  which 

cauio  into  his  hands  [state  the  circumstances]  ;  and  that  he  is 
liable  to  amercement  tlierefor: 

It  is  therefore  ordered  that  the  said  M.  X.,  sheriti' [o/-,  otiur 
officer],  be  amerced  for  this  said  neglect  [o/-,  refusal]  in  the 

sum  of dollars;  and  that  the  said  plaintiff  recover  the 

same,  together  with  liis  costs  in  this  behalf  expended,  from 
the  said  M.  X.,  according  to  the  force  and  effect  of  the  statute 
in  such  case  made  and  provided. 

Modify  one  of  the  two  last  entries  to  meet  other  cases  provided  for 
iu  section  5594. 

365.  (Sec.  5596.)     Amercement  for  failinrj  to  execute  order  or 

process. 
[Title.] 

As  in  No.  363  to  *,  and  continue ;] — without  sufficient  cause 
to  execute  certain  process  in  this  case,  to  wit  [here  state  the 

pi'ocess],  which,  was  on  the day  of ,  18 — ,  duly  issued 

and  delivered  to  him;  and  thereu})()n  find  that  the  said  sherx 
iff  is  liable  to  amercement  therefor. 

It  is  therefore  ordered  by  the  court  that  the  said  M. 
X.,  sheriff  [or,   other  officer),  be  amerced   for  tliis  his   said 

refusal  [or,   neglect],  in  the  sum  of dollars ;  and  that 

the  said  plaintiff  recover  the  said  sum,  together  with  his 
costs  herein  expended,  from  the  said  M.  'N.,  according  to  the 
force  and  effect  of  the  statute  in  such  case  made  and  pro- 
vided. 

366.  (Sec.  5597.)     Amercement  of  clerk. 
[I'itle.] 

See  Entry  No.  364. 

367.  (Sec.  5599.)    Judgment  making  the  surety  of  an  officer  porfy 

to  a  judgment  of  amercement  against  the 
officer. 

[Title] 

Tf  this  judgment  is  rendered  after  trial,  use  Finding  TIL,  page 
90;  if  on  default,  Finding  TV.,  page  100,  and  continue:] — and 
that  the  dofondants,  E.  F.  and  G.  IT.,  as  sureties  of  the  said 


200  JOURNAL    ENTUIES.  [SEC.  5()()()- 

C,  D.,  sherifFas  aforesaid,  arc  liable  to  the  plaiiitifTherein  n[)oii 
the  said  judgment  of  amercement  against  the  said  C.  I). 

It  is  therefore  considered  that  tlie  said  E.  F.  and  G.  II.  he, 
-and  they  hereby  are,  made  parties  to  the  judgment  rendered 
as  aforesaid  against  the  said  C.  I). ;  and  that  the  said  A.  B., 
upon  the  same  judgment,  liave  his  execution  against  the  said 
E.  F.  and  G.  II.  for  the  damao;es  and  costs  aforesaid,  to  wit, 

the  sum  of  $ damages,  with  interest  from ,  and  $ 

costs,  together  with  his  costs  in  this  behalf  expended. 

.368.  (Sec.  5600.)      Officer  amerced  allov)ed  to  sue  out  execution, 

etc. 

[Title.] 

On  motion  of  L.  M.,  sheriff  [or,  other  officer]  of  this  court, 
heretofore  amerced  in  this  case,  it  is  hereliy  ordered  that  he 
be  permitted  to  sue  out  an  execution  on  the  judgment  herein, 
and  collect  the  same  for  his  own  use,  in  the  name  of  the  pres- 
ent plaintifi'. 


CHAPTER  II. 

ARBITRATION. 

369.  (Sec.  5609.)     Judgment  on  award  for  money. 

370.  (Sec.  5610.)     Judgment  to  enforce  the  performance,  etc. 

371.  Order  allowing  arbitration  in  a  pending  case. 

372.  Judgment  on  the  award. 

Where  a  question  of  damages  arises  in  a  pending  case,  the  court 
may,  by  the  consent  of  both  parties,  permit  the  amount  to  be  fixed  by 
tirbitratiou,  and  decree  the  amount  thus  found.' 

A  court  of  chancery  ■will  not  decree  a  specific  performance  of  an 
agreement  to  arbitrate,  nor  require  arbitrators  to  make  an  award  1. 

369.  (Sec.  5609.)     Judgment  on  award  for  money. 
[Title.] 
Now  came  the  said  A.  B.,  by  his  attorney,  and  having  be- 

^  Conner  v.  Draka,  1  Ohio  St.  ItlG. 


-5613.]  ARBITRATION,  201 

fore  tliis  term  of  court  filed  an  arbitration  hond  duly  exe- 
cuted between  himself  and  the  said  C.  D.,  and  also  a  copy 
of  the  award  thereunder;  and  it  appearing  that  all  the  con- 
ditions of  the  said  bond  have  been  complied  with,'  and  a 
copy  of  the  said  award  duly  furnished  to  the  said  C.  D., 
who  neglects  [or,  refuses]   to  comply  with  the  same  :  *  and 

the  sum  of  $ having  been,  by  said  arbitration,  awarded 

to  the  said  A.  B.,  which  sum  is  due  and  payable  from  the: 
said  C.  D. : 

It  is  therefore  considered  by  the  court  that  the  said  A.  B. 
recover  from  the  said  C.  J),  the  said  sum  of dollars  so- 
awarded  to  him,  together  with  his  costs  in  this  behalf  ex- 
pended;  and  execution  is  awarded  therefor. 

370.  (Sec.  5610.)  Judgment  to  enforce  the  j)erformance  of  an. 
act  other  than  the  jiaymcnt  of  money. 

{Title.'] 

As  in  lost  decree  to  *,  and  continue  :]—^ii\\il  it  having  been^ 
by  said  arbitration,  awarded  and  determined  that  [here  state 
the  act  to  be  done']  : 

It  is  therefore  ordered  and  adjudged  by  the  conrt  that  un- 
less the  said  C.  D.  do,  within days,  perform  and  fullilt 

the  said  matters  on  his  part  to  be  done  according  to  the  said 
award,  a  rule  be  allowed  to  issue  directing  the  said  C.  D.  to- 
appear  before  this  court  to  show  cause  why  an  attachment  as. 
for  a  contempt  should  not  issue  against  him.  for  said  dis- 
obedience.^ 

871.   Order  allowing  arbitration  in  a  j^^nding  case. 

[Title.] 

l^ow  came  the  parties,  by  their  attorneys,  and,  on  motion^ 
and  by  consent  of  all  parties,  it  is  ordered  that  the  question 
of  damages  in  this  case  be,  and  the  same  hereby  is,  referred 
to  the  award  and  determiiuition  of  R.  W.  and  J.  H.,  who 
shall  have  their  said  award  drawn  up  in  writing,  and  signed 
by  them,  before  the  first  day  of  the  next  term  of  this  court; 

1  Strum  V.  Cunningham,  3  Ohio,  286. 

2  For  the  proceedings  in  contempt,  sen  Covt-empts  of  Court.. 


202      .  JOURNAL    ENTRIES.  [SEC.  5614- 

and  the  parties  agree  tliat  judgment  shall  be  entered  on  such 
award  at  the  next  term  of  this  court;  and  that  no  exceptions 
on  account  of  form,  substance,  or  otherwise,  shall  at  any 
time  be  taken  to  such  award,  or  judgment  thereon. 

372.  Judf/ment  on  the  last  award. 

[Title.] 

Now  came  the  parties  hereto,  and  the  award  of  the  arbitra- 
tion heretofore  ordered  having  been  filed,  the  court  find  the 
same  to  have  been  made  in  all  things  in  pursuance  of  the  said 
order  [covtinue  as  from  *.  in  Entry  No.  369  or  370,  according 
to  circumstances.] 


CHAPTER  III. 

BASTARDY. 

373.  (Sec.  5617.)     Discharge,  on  bond  given. 

374.  (Sec.  5619.)     Recognizance  taken,  defendant  discharged. 

375.  (Sec.  5622.)     Prisoner  delivered   and   committed,    recognizance   re- 

leased. 

376.  (Sec.  5622.)     New  recognizance  ordered. 

377.  (Sec.  5623.)     Recognizance  forfeited. 

378.  (Sec.  5625.)     Plea  of  "  not  guilty,"  and  order  for  jury  trial. 

379.  (Sec.  5625.)     Defendant  failing  to  appear,  order  for  trial. 

380.  (Sec.  5626.)     Verdict  of  guilty. 

380a.   (Sec   5626.)     Judgment  on  verdict  for  maintenance. 

381.  (Sec.  5626.)     Plea  of  guilty,  and  order  for  maintenance. 

382.  (Sec.  5628.)     Suggestion  of  mother's  death,  etc. 

383.  (Sec.  5630  )     Judgment  reduced  on  death  of  child. 

373.  (Sec.  5617.)     Discharge,  on  bond  given. 

[Title.] 

Now   come    the    parties   hereto,  and   the  plaintifiT  having 

agreed  to  receive  from  the  defendant  the  sum  of dollars, 

in  full  satisfaction  of  this  action  and  her  claims  upon  the 
said  defendant,  and  the  said  defendant  having  paid  the  same 
[or,  secured  the  payment  of  the  same  to  the  satisfaction  of 
the  court],  and  having  also  given  bond  to  the  State  of  Ohio, 
with  E.  F.  and  G.  H.  as  sureties,  to  the  approval  of  this 
court,  conditioned  to  save  the  [county,  township,  or  municijpal 
corporation]    from  all  charges  for   the   maintenance  of  said 


-5025.]  BASTARDY.  203 

<liild;  now,  therefore,  the  said  C.  D.  is  hereby  discharged 
ii'ciu  custody  upon  payment  of  the  costs  of  this  prosecution, 
:ind  this  action  is  dismissed. 

374.  (Sec.  5619.)      Jieror/nizance  taken,  defendant  discharr/ed. 
[Title.] 

iSTow  comes  the  defendant,  C.  D.,  and  with  J.  E.  and  R.  S. 
as  his  sureties,  to  the  approval  of  the  court  entered  into  recog- 
iiizauce  in  the  sum  of dollars,  conditioned  for  his  appear- 
ance at  the tierm  of  this  court,  to  answer  the  charge  in 

this  action  ;  and  the  said  C.  D.  is  therefore  discharged  from 
custody. 

375.  (Sec.  5622.)     Prisoner  delivered,  and   committed,  recogni- 

zance released. 
{Title.'] 

ISTow  come  J.  R.  and  R.  S.,  the  sureties  on  the  recognizance 
of  the  said  C  D.,  and  surrender  the  body  of  the  said  C.  D., 
and  ask  to  be  released  from  said  recognizance;  and  the  said 
C.  D.  being  in  charge  of  the  sheriff,  it  is  ordered  that  the 
aforesaid  recognizance  be  canceled,  and  that  the  said  C.  D. 
be  committed  to  jail  until  he  shall  give  a  new'  recognizance, 

376.  (Sec.  5622.)     New  recognizance  ordered. 
[Title:] 

On  motion,  and  it  appearing  to  the  court  that  the  recogni- 
zance herein  taken  is  insufficient,  it  is  ordered  that  a  new 
one  be  taken.  And  that  in  default  of  the  said  defendant  en- 
tering into  the  same,  he  be  committed  to  jail ;  and  a  capias 
is  allowed  therefor. 

377.  (Sec.  5623.)     Recognizance  forfeited. 
See  entry  No.  913, 

378.  (Sec.   5625.)     Plea  of  "  not  guilty,"   and  order  for  jury 

trial. 
[  Title.] 

And  now  the  defendant  coming  into  court,  for  plea  to  the 

charge  made  against  him  in  this  action,  saith  that  he  is  "not 


204  JOURNAL    ENTRIES.  [SEC.  5626— 

guilty,"   and  the    court    order  the    issue    to  be    tried  hy   a 
jury- 

379.  (Sec.  5625.)     Defendant  failivg  to  appear ;  order  for  trial. 
[Title.'] 

And  now  the  defendant  being  called,  and  failing  to  appear 
as  recognized  to  this  court,  it  is  ordered  that  the  issue  of  his 
guiltiness  be  tried  by  a  jury. 

380.  (Sec.  5626.)     Verdict  of  guilty. 
[Titlc^^ 

Follow  the  usual  forrn.  of  entering  verdict,  for  which  see  pages 
56  and  57,  and  let  the  verdict  be:] — 

"We,  the  jury,  find  on  the  issue  joined  [or,  submitted  to 
us],  that  the  defendant,  C.  D.,  is  guilty  as  charged  in  this 
case.  (Signed,)  A.  B.,  Foreman.'" 

380a.  (Sec.  5626.)     Judgment  on  verdict  for  maintenance. 

[Title.] 

The  defendant,  C.  D.,  having  been  found  guilty  as  charged 
in  this  case,  he  is  now  therefore  adjudged  *  by  the  court  to 
be  the  reputed  father  of  the  said  child, ^  and  it  is  ordered  that 
he  stand  charged  with  the  maintenance  thereof  in  the  sum  of 
dollars  ;  and  that  he  pay  said  sum,  etc.  [state  time  and  con- 
ditions of  payment]  ;  and  also  that  he  pay  the  costs  of  this 
proceeding.!     For  all  of  which  execution  is  awarded.- 

It  is  further  ordered  that  the  said  defendant  give  security 
to  the  acceptance  of  this  court  for  the  performance  of  this 
order.  And  in  default  of  such  payment,  or  security,  that  he 
be  committed  to  the  jail  of  the  county,  there  to  remain  until 
he  shall  comply  with  the  requirement  of  court. 

If  the  defendant  has  forfeited  his  bail,  and  is  not  in  the  cus- 
tody of  the  sheriff,  add  {sec.  5U23) ;] 

And  it  appearing  to  the  court  that  the  recognizance  of  the 

'An  order  for  rriiiintenance,  without  tlie  judgment  of  the  court  that  the  de- 
fendant is  the  reputed  father  of  the  child,  is  erroneous.  Devinney  v.  Thi 
State,  Wright,  564. 

It  is  error  for  the  court  to  render  judgment  simply  for  a  gross  sum,  and. 
award  execution.     lb 

2  See  Darbv  v.  Carson,  9  Ohio,  140. 


-5638.]  BASTARDY.  205 

said  defendant  has  been  forfeited,  and  that  the  amount  of 

said  bond,  to  wit,  the  sum  of  S ,  is  in  the  hands  of  the 

court,  it  is  ordered  that  the  same  be  applied  to  the  pay- 
ment of  this  judgment,  and  that  a  capias  issue  for  the  arrest 
of  the  said  C.  D. 

If  attached  property  be  in  the  hands  of  the  sheriff,  the  entry 
may  conclude,  commencing  at  f,  as  follows  {by  sec.  5636);] — and 
it  is  ordered  by  the  court  that  so  much  of  the  property  at- 
tached in  this  case  remaining  in  the  hands  of  the  sheriff  as 
is  necessary  to  satisfy  this  judgment  be  sold,  as  upon  execu- 
tion, and  that  the  money  arising  therefrom  be  applied  to  the 
payment  of  the  same. 

381.  (Sec.  5626.)     Plea  of  guilty,  and  order  for  maintenance. 
ITille.] 

This  day  came  the  defendant,  C.  D.,  and  confessed  in  court 
that  the  charge  of  the  plaintiff  herein  is  true. 

He  is  therefore  adjudged,  etc.  [_as  from^  in  Entry  No.  380a]. 

382.  (Sec.  5628.)     Suggestion  of  mother's  death,  etc. 
{Title.'] 

Now  comes ,  and  suggests  to  the  court  the  death  of 

A.  B.,  the  mother  of  said  child  ;  and  the  court  being  satisfied 
of  the  truth  thereof,  and  that  her  said  infant  child,  C.  B.,  is 
still  living,  it  is  ordered  that  the  name  of  the  said  child  be 
substituted  for  that  of  the  said  A.  B.  in  these  proceedings. 
And  G.  H.  is  hereby  appointed  guardian  ad  litem  for  the  said 
infant. 

And  the  said  G.  H.  now  comes  and  in  open  court  accepts 
said  appointment 

383.  (Sec.  5630.)     Judgment  reduced  on  death  of  child. 
[Title.] 

On  motion  of  the  court,  and  due  notice  of  this  application 
being  given  to  the  said  plaintiff,  and  it  appearing  that  the 
said  child,  C.  B.,  has  died  since  the  rendition  of  the  judg- 
ment herein,  it  is  ordered  that  the  amount  of  each  unpaid 

installment  of  said  judgment  be  reduced  to dollars. 

14 


206  JOURNAL    ENTRIES.  [SEC.  5639— 

CHAPTER  lY. 

CONTEMPTS  OF  COURT. 

Misbehavior  in  the  presence  of  the  court — 

384.  (Sec.  5639.)     Order  punishing. 

Acts  punishable  as  contempts — rule  to  show  cause— 

385.  (Sec.  5641.)     Charge  filed,  and  rule  allowed. 

386.  (Sec.  5642.)     Same,  and  bond  fixed. 

387.  (Sec.  5642.)     Continuance,  and  bond  fixed. 

388.  (Sec.  5645.)     Rule  discharged. 

389.  (Sec.  5645.)     Order  punishing  for  disobedience,  etc. 

Attachment — 

390.  (Sec.  5641.)  Charge  filed  and  attachment  allowed. 

391.  Order  of,  for  disobedience  of  rule. 

392.  (Sec.  5645.)  Order  punishing  for  a  contempt. 

393.  (Sec.  5645.)  Order  discharging  attachment. 

394.  (Sec.  5647.)  Arrest  ordered. 

395.  (Sec.  5647.)  Suit  on  bond  ordered,  etc. 

396.  (Sec.  5648.)  Discharge  from  imprisonment  ordered. 

Misbehavior  in  the  presence  of  the  court — 

The  order  inflicting  the  summary  punishment  provided  for  in  section 
5639  should,  in  all  cases,  be  entered  in  the  journal,  as  by  section  5649 
it  is  liable  to  be  reviewed  on  error.     It  may  be  as  follows : 

384.  (Sec.  5639.)     Order  jninishing  for  misbehavior. 

In  the  matter  of  the  1 
contempt  of  A.  H.  / 

A.  H.  having  this  day  been  guilty  of  misbehavior  in  the 
presence  of  the  court  [or,  in  my  presence],  in  this,  to  wit 
[specif y],  it  is  ordered  and  adjudged  that  as  a  punishment  for 

said  contempt  he  pay  a  fine  of dollars,  and  execution  is 

awarded  for  the  same  [or,  be  imprisoned  in  the  county  jail 
for days,  and  that  a  warrant  issue  for  such  commitment]. 

Acts  punishable  as  contempts — 

These  acts  are  such  as  are  enumerated  in  section  5640,  and  in  other 
sections  of  the  code. 


-5642.]  CONTEMPTS    OF   COURT.  207 

In  making  these  entries,  the  title  of  the  proceedings  should  be  as 
above,  unless  they  are  had  in  a  case  already  on  the  docket,  in  which 
case  they  should  have  the  title  ot  such  case.  The  revised  statutes, 
differing  from  the  former  code,  require  a  charge  in  writing  to  be  made 
and  filed  with  the  clerk,  and  an  entry  thereof  to  be  made  on  the  jour- 
nal. If  not  in  a  case  already  on  the  docket,  the  case  should  be  dock- 
eted and  numbered  as  a  new  case. 

Rule  to  show  cause — 

It  is  very  customary  for  the  party  seeking  to  enforce  an  order  of  the 
court,  or  an  act  to  be  performed  when  the  case  is  not  very  urgent,  to 
have  a  rule  to  show  cause  first  made. 

385.  (Sec.  5641.)     Charge  filed  and  rule  allowed. 
ITitle.'] 

And.  now  A.  B.,  having  filed  with  the  clerk  of  this  court 
certain  written  charges  against  C.  D.,  alleging  the  disobedi- 
ence of  the  said  C.  D.  to  the  former  order  of  this  court,  di- 
recting [specify  order,  or  instead  of  disobedience  allege  any  of- 
fense named  in  section  5640  or  in  other  statutes^  on  motion  of 
said  A.  B.*  a  rule  is  allowed  herein  against  the  said  C.  D., 
directing  him  to  appear  before  this  court  forthwith  \or,  on 

the  day  of  ,  18 — ,  at o'clock  -.  m.],  to  show 

cause  why  he  should  not  be  punished  as  for  a  contempt  for 
his  said  disobedience  \or  other  misconduct^. 

386.  (Sec.  5642.)     Same,  and  bond  fixed. 
[Title.'] 

Add  to  last  entry  lohen  the  writ  is  not  returnable  forthwith  •] 
And  the  court  fix  the  amount  of  the  undertaking,  which 
the  said  CD.  may  give,  with  surety,  to  the  satisfaction  of 
the  sheriff,  for  his  appearance  on  said  day  and  at  such  other 
times  and  places  as  the  court  may  direct,  to  answer  said 
charge,  at dollars. 

On  the  appearance  of  the  accused,  under  the  above  orders,  he  will 
be  heard  by  himself  or  counsel,  unless  inconvenient  at  that  time,  in 
which  case,  or  in  any  case  of  continuance,  the  court  may  require  a 
bond  from  the  accused  for  his  appearance  to  answer  the  charge  as 
follows : 


208  JOURNAL    ENTRIES.  [SEC.  5642- 

387.  (Sec.  5642.)     Continuance  and  bond  fixed. 
[Title.'] 

ISTow  came  the  said  C.  D.,  in  obedience  to  the  rule  herein, 
and  it  being  necessary  to  continue  the  case  for  hearing  \or, 
for  further  hearing],  it  is  ordered  that  said  C.  D.  enter  into 
an  undertaking,  with  surety  to  the  satisfaction  of  the  clerk 

of  this  court,  in  the  sum  of dollars,  for  his  appearance 

to  answer  the  charge  against  him,  at  such  times  and  places 
as  the  court  may  direct ;  and  in  default  of  the  same  that  he 
remain  in  custody  of  the  sherifi'  pending  these  proceedings. 

388.  (Sec.  5645.)     Rule  discharged. 
[Title.'] 

]^ow  came  the  said  C.  D.,  and,  upon  hearing  in  this  case, 
purged  himself  of  contempt  for  his  alleged  disobedience  of 
the  order  of  court.  And  thereupon  the  said  rule  is  hereby 
discharged  at  the  cost  of  the  said  A.  B. 

389.  (Sec.  5645.)     Order  ■punishing  for  disobedience,  etc. 
[Title.] 

N^ow  came  the  said  C.  D.,  in  obedience  to  the  rule  of  the 
court,  and  was  examined  under  oath  touching  his  alleged 
disobedience  of  the  former  order  of  the  court  herein.  On 
consideration  whereof,  the  court  find  him  guilty  of  the  same, 
and  that  he  is  thereby  guilty  of  a  contempt. 

It  is  therefore  adjudged  that  the  said  C.  D.  pay  a  fine  of 

dollars  and  the  costs  of  this  prosecution,  and  execution 

is  awarded  therefor  [or,  that  the  said  C.  D.  be  imprisoned  for 

months  in  the  county  jail  of county,  and  that  a 

warrant  issue  for  such  commitment].  Or  both  penalties  may 
be  adjudged. 

Attachment — 

The  attachment  may  be  ordered  in  the  first  instance,  instead  of  the 
rule,  as  follows : 

390.  (Sec.  5641.)     Charge  filed  and  attachment  allowed. 
[Title.] 

As  in  Entry  No.  385  to  *,  and  continue :] — an  attachment  is 


-5645.]  CONTEMPTS    OF   COURT.  209 

allowed  to  issue  against  the  said  C,  D.,  commanding  the 
sheriff  to  arrest  and  bring  him  before  this  court  forthwith 

[or,  on  the  day  of ,  18 — ],  to  show  cause  why  he 

should  not  be  punished  as  for  a  contempt  for  his  said  disobe- 
dience [or  other  misconduct]. 

Entries  Nos.  386  and  387,  as  above,  may  also  be  made  here,  as  well 
as  after  the  rule. 

If  the  rule  as  above  is  disobeyed,  an  attachment  may  then  be 
ordered,  as  follows  : 

391.  Order  for  attachment  for  disobedience  of  rale. 
[Title.] 

The  defendant,  C.  D.,  having  been  duly  served  with  a  rule 
in  this  case,  and  having  failed  to  obey  the  command  thereof, 
an  attachment  as  for  a  contempt  is,  on  motion,  allowed  to 
issue,  commanding  the  sheriff  to  arrest  and  bring  the  said 

CD.  before  this  court  forthwith,  [or,  on  the day  of ,] 

to  answer  for  his  alleged  disobedience  [or  other  misbehavior,  as 
set  forth  in  entry  alloioing  rule]. 

392.  (Sec.  5645.)     Order  punishing  for  a  contempt. 
[Title.] 

Now  came  the  said  C.  D.  in  custody  of  the  sheriff  [or,  in 
accordance  with  his  undertaking  of  bail  to  the  sheriff],  and 
was  examined  under  oath  touching  his  alleged  contempt ;  on 
consideration  whereof,  the  court  find  *  that  he  has  been 
guilty  of  the  same. 

It  is  therefore  adjudged  that  the  said  C.  D.  pay  a  fine  of 

dollars  and  the  costs  of  this  prosecution,  and  execution 

is  awarded  therefor  [or,  that  the  said  C.  D.  be  imprisoned  for 

months  in  the  county  jail  of  the  county  of ;  and 

that  a  warrant  issue  for  such  commitment].  Or  both  penal- 
tits  may  be  adjudged. 

If  the  act  may  still  be  performed,  the  order  may  be  that  he  be  im- 
prisoned until  he  performs  it;  see  sec.  5646. 


210  JOURNAL    ENTRIES.  [SEC.  5647- 

393.  (Sec.  5645.)      Order  discharging  attachment. 
[Title.'] 

As  in  last  to^,  and  continue:'] — that  he  has  not  been  guilty 
of  the  same. 

It  is  therefore  ordered  that  said  attachment  be,  and  the 
same  hereby  is,  discharged  at  the  cost  of  the  said . 

394.  (Sec.  5647.)     Arrest  ordered. 
[Title.] 

And  now  the  charge  against  the  said  C.  D.  being  called  for 
hearing,  and  the  said  C.  D.  failing  to  appear  in  accordance 
with  his  obligation,  it  is  ordered  that  the  sheriiF  again  arrest 
and  bring  the  said  C.  D.  before  this  court  forthwith  [or,  at 
some  future  time],  to  answer  said  charge. 

395.  (Sec.  5647.)     Suit  on  bond  ordered,  etc. 
[Title.] 

And  now  the  charge  against  the  said  C.  D.  being  called 
for  hearing,  and  the  said  C.  D.  failing  to  appear,  and  E.  F., 
the  surety  upon  his  undertaking,  failing  to  produce  the  body 
of  the  said  C.  D.,  in  accordance  with  the  obligation  of  said 
bond,  it  is  ordered  that  said  undertaking  be  forfeited  abso- 
lutely, and  that  it  be  prosecuted  to  judgment  and  execution. 
It  is  also  ordered  that  the  sheriif  again  arrest  and  bring  before 
this  court  forthwith  [or,  at  some  future  time]  the  said  C.  D.,  to 
answer  the  said  charge  against  him. 

The  suit  upon  the  bond  will  be  a  civil  action,  conducted  as  other  civil 
actions. 

396.  (Sec.  5648.)     Discharge  from  imprisonment  ordered. 
[Title.] 

Modify  Entry  No.  300  to  the  circumstances  of  the  case. 


CHAPTER  V. 

DISSOLUTION  OF  CORPORATIONS. 

397.  (Sec.  5654.)     Order  that  notice  be  given. 

398.  (Sec.  5656.)     Order  dissolving  and  appointing  receiver. 

399.  (Sec.  56G9.)     Dividend  to  creditors  ordered. 


—5656.]  DISSOLUTION    OF    CORPORATION.  211 

400.  (Sec.  50ff)9.)  Dividend  to  stockholder.s  ordered. 

401.  (Sec.  5670.)  Account  of  receiver  referred. 

402.  (Sec.  5671.)  Account  of  receiver  allowed. 

403.  (Sec.  5673.)  Officers  ordered  to  make  showing,  etc. 

404.  (Sec.  5676.)  Vacancy  in  board  of  trustees  declared,  and  remaining 

ones  empowered  to  act. 

405.  (Sec.  5676.)     Vacancy  declared,  etc.,  and  new  trustees  appointed. 

397.  (Sec.  5654.)     Order  that  notice  be  given,  etc. 
[  Title:] 

This  cause  coming  on  for  hearing  on  the  petition  for  the 

dissolution  of  the  ,  a  corporation,  and  on  the  accounts 

and  inventories  of  said  corporation,  and  the  affidavits  of  the 
applicants,  and  said  application  conforming  in  all  respects 
to  the  requirements  of  law,  it  is  now  ordered  that  all  per- 
sons interested  in  said  corporation  having  any  cause  to  show 
why  it  should  not  be  dissolved,  appear  before  A.  S.  L.,  a  mas- 
ter commissioner  of  this  court  [or,  A.  S.  L.,  whom  the  court 

hereby  appoints  referee],  on  the  day  of ,  18 — ,  at 

his  office,  No. ,  street,  Cincinnati,  Ohio,  and  that 

then  and  there  a  hearing  of  the  same  be  had ;  and  that  said 
master  commissioner  [or,  referee]  make  due  report  to  this 
court  of  all  testimony  taken  in  reference  thereto,  as  well  as 
of  the  property,  effects,  debts,  credits  and  engagements  of 
said  corporation,  and  of  all  other  matters  and  things  pertain- 
ing to  its  affairs. 

398.  (Sec.  5656.)     Order  dissolving  corporation  and  appointing 

receiver. 

[Title.] 

And  now  this  cause  coming  on  for  hearing  on  the  report 
of  A.  S.  L.,  as  referee  [or,  master  commissioner],  and  it  thereby 
appearing  to  the  court  that  said  corporation  is  insolvent  [or, 
st'ite  any  of  the  causes  provided  in  the  above  section],  and  no  good 
cause  to  the  contrary  being  shown,  it  is  therefore  ordered  and 
adjudged  by  the  court  that  said  corporation,  the be  dis- 
solved, and  L.  W.  is  hereby  appointed  receiver  of  all  the  estate 
and  effects  of  said  dissolved  corporation.  It  is  further  ordered 
that  the  penalty  of  the  undertaking  to  be  given  by  said  re- 
ceiver be  fixed  at  $ . 

And  now  came  the  said  L.  W.  and  presented  his  said  under- 


212  JOURNAL    ENTRIES.  [SEC.  5669- 

taking,  with  L.  E.  and  R.  S.  as  sureties,  to  the  approval  of 
the  court,  and  was  duly  sworn  as  such  receiver. 

399.  (Sec.  5669.)     Dividend  to  creditors  ordered. 
[Title:\ 

On  motion  to  the   court,  and  upon  showing  made  by  the 

receiver  herein,  it  is  ordered  that  a  cash  dividend  of per 

cent  be  distributed  to  the  creditors  of  the  said  corporation. 

400.  (Sec.  5669.)     Dicidend  to  stockholders  ordered. 
{Title.] 

On  motion  to  the  court,  and  it  being  shown  that  there  re- 
mains a  surplus  of  cash  in  the  hands  of  the  receiver  herein, 
to  wit,  the  sum  of dollars,  after  payment  of  all  the  ex- 
penses of  this  proceeding,  and  payment  of  the  creditors  of 
the  corporation  in  full,  it  is  ordered  that  said  receiver  distrib- 
ute the  same  as  a  dividend  among  the  stockholders  of  the 
corporation. 

401.  (Sec.  5670.)     Account  of  receiver  referred^  etc. 
[Title.'] 

And  now  A.  S.  L.,  the  receiver  herein,  having  filed  his  ac- 
count with  this  court,  it  is  ordered  that  it  be  referred  to  J. 
S.  C,  as  referee  [or,  a  master  commissioner  of  this  court], 
who  is  hereby  appointed  to  examine  and  report  to  this  court 
upon  the  same. 

402.  (Sec.  5671.)     Account  of  receiver  allowed. 
[Title:] 

And  now  this  cause  coming  on  for  hearing  upon  the  re- 
port of  J.  S.  C,  referee  [or,  master  commissioner],  to  whom 
Avas  referred  the  account  rendered  herein  by  A.  S.  L.,  re- 
ceiver, and  upon  all  the  evidence  taken  in  reference  to  said 
account,  the  court  find  said  account  correct  and  satisfactory, 
and  allow  the  same;  and  it  is  ordered  and  decreed  that  said 
account  be  final  and  conclusive  upon  all  the  creditors  and 
stockholders  of  said  corporation,  and  upon  all  persons  hav- 
ing claims  against  or  engagements  with  it. 

It  is  further  ordered  that  A.  S.  L.,  the  said  receiver,  be  al- 
lowed for  his  services  heroin  the  sum  of  ^ ,  and  that  J.  S. 


-5676.]  DISSOLUTION    OF    CORPORATION.  213 

C,  referee,  be  allowed  the  sum  of  $ ,  and  that  the  receiver 

pay  the  same  out  of  any  moneys  in  his  hands  belonging  to 
said  corporation, 

403.  (Sec.  5673.)      Officers  ordered  to  make  shoioing,  etc. 
[Title.'] 

And  now  this  cause  coming  on  for  hearing  on  the  petition 
of  the  owners  of  more  than  one-iiftii  in  amount  of  the  paid 
up  stock  of  the ,  a  corporation  organized  for  manufactur- 
ing [or,  mining]  ,  for  the  dissolution  of  said  corpora- 
tion, and  upon  the  allegation  in  said  petition  that  [make  state- 
ment as  in  above  section'],  it  is  ordered  by  the  court  that  the 

officers  of  said  corporation,  within  days,  file   in  this 

court  [specify  the  inventories,  accounts,  etc.,  in  section  5652]. 

Subsequent  entries  same  as  above. 

404.  (Sec.  5676,  5677.)      Vacancy  in  board  of  trustees  declared, 

and  remaining  ones  empowered  to  act. 

[Title.] 

And  now  this  cause  coming  on  to  be  heard  on  the  petition 
and  the  evidence,  the  court  find  that  the  said  C.  D.  and  E. 
F.,  the  parties  named  therein,  were  directors  of  the  Ohio 
Coal  Company  at  the  time  it  expired  by  limitation  [or,  of  its 
dissolution],  and  that,  as  such,  they  now  refuse  [or,  neglect] 
to  act,  and  that  thereby  the  last  board  of  directors  of  said 
expired  [or,  dissolved]  corporation  is  unable  to  act  in  closing 
up  its  aftairs.  It  is  therefore  ordered  and  adjudged  that  the 
places  of  said  directors  so  refusing  to  act  be,  and  they  hereby 
are,  declared  vacant,*  and  that  the  remaining  directors,  to  wit, 
C.  R.  W.  and  J.  R.  D.,  be,  and  they  hereby  are,  empowered  to 
perform  the  duties  of  trustees,  as  provided  by  law,  in  settling 
up  the  affairs  of  said  expired  [or,  dissolved]  corporation. 

t  It  is  also  ordered  that  the  said  C.  D.  and  E.  F.  convey, 
by  good  and  sufiicient  deed,  all  real  estate,  and  assign  over 
all  rights,  in  them  vested  as  such  trustees,  and  deliver  all 
books  and  papers  touching  the  affairs  of  the  corporation,  to 
the  trustees  here  named. 

And  in  default  of  the  said  conveyance  and  assignment, 
witliin days  from  the  entry  hereof,  it  is  ordered  that  this 


214  JOURNAL   ENTRIES.  [SEC.    5676- 

decree  have  the  same  force  and  effect,  and  be  in  all  respects 
as  available,  as  such  deed  and  assignment  would  be  to  con- 
vey the  premises  and  rights  here  named  to  said  trustees.^ 

405.  (Sec.  5676.)  Vacancy  declared,  etc.,  and  new  trustees  ap- 
pointed. 

ITitle.'] 

As  in  last  to  *,  and  continue:'] — And  the  court  appoint  W. 
M.  and  C.  S.  as  trustees,  and  they  are  hereby  empowered 
to  act  as  such,  with  those  'remaining,  in  settling  up  the  af- 
fairs of  said  expired  [or,  dissolved]  corporation,  with  all  the 
powers  that  would  by  law  belong  to  its  last  board  of 
directors  in  that  behalf.  [Conclude,  if  necessary,  as  from  ■\, 
in  last.] 


CHAPTER  VI. 

DIVORCE  AND  ALIMONY. 

406.  (Sec.  5695.)     Finding  in  decree  by  default. 

407.  (Sec.  5695.)     Decree  for  divorce  and  alimony. 

408.  Decree  for  defendant,  refusing  divorce. 

409.  (Sec.  5702.)     Decree  of  divorce,  or  for  alimony,  for  defendant,  on 

cross-petition. 

410.  (Sec.  5701.)     Order  for  alimony  pendente  lite. 

411.  (Sec.  5703.)     Decree  for  alimony  on  petition. 

Marriage  void  ab  initio — 

412.  Decree  declaring. 

Hu.SBAKD    wasting    PROPERTY 

413.  (Sec.  5705.)     Decree  enjoining. 

Where  the  evidence  fails,  the  cause  may,  under  certain  circumstances, 
be  continued,  and  the  court  will  in  a  proper  case  then  give  leave  to 

1  But  the  order  may  also  be  enforced  by  process  as  other  orders  of  court.    Sec- 
6677. 


-5695.]  DIVORCE    AND    ALIMONY.  215 

amend,  and  enjoin  the  husband  from  interfering  with  tha  children  or 
property  in  the  possession  of  the  wife,  pending  the  suit.^ 

406.  (Sec.  5695.)     Findii'ig  in  decree  by  default.' 
{Title.'] 

!N"ow  came  the  plaintiff,  and  the  defendant  having  been  duly 
served  with  summons  and  a  copy  of  the  petition  herein,  [or, 
having  been  legally  summoned  by  publication],  and  having 

failed  to  appear,  the  court  find in  default  for  answer  and 

demurrer  to  said  petition,  and  find  tliat  the  allegations  thereof 
are  confessed  by to  be  true.  The  court  also  find  f  [con- 
tinue as  from  f,  in  next  decreel- 

407.  (Sec.  5695.)     Decree  for  divorce  and  alimony. 
[Title.'] 

This  cause  came  on  this  day  to  be  heard  on  the  petition, 
the  answer  of  the  defendant,  C.  D.,  and  the  evidence,  and  on 
consideration  thereof,  the  court  find  t  that  the  plaintiff,  at 

the  time  of  filing petition,  had  been  a  resident  of  the 

State  of  Ohio  for  one  year  next  preceding  the  same,'  and 

was  at  that  time  a  bona  fide  resident  of  this  county  of 

[or,  that  the  cause  of  complaint  arose  or  took  place  in  this 

county  of '],  and  that  the  parties  hereto  were  married, 

as  in  said  petition  set  forth. 

The  court  further  find,  upon  the  evidence  adduced,  that 
the  defendant  has  been  guilty  of  [here  state  cause  of  divorce \.^ 
and  that  by  reason  thereof  the  plaintiff"  is  entitled  to  a  di- 
vorce, as  prayed  for. 

It  is  therefore  ordered  and  adjudged  by  the  court  that  the 
marriage  contract  heretofore  existing  between  the  said  A.  B. 
and  C.  D.  be,  and  the  same  hereby  is,  dissolved,  and  both 
parties  are  released  from  the  obligations  of  the  same. 

It  is  further  ordered  that  the  custody,  care,  education,  and 
control  of  the  said  children  of  the  parties  hereto  be,  until 

further  order,  confided  to  the  said exclusively.     And  the 

is  hereby  enjoined  from  interfering  in  any  manner  with 

1  Wilson  V.  Wilson,  1832,  W.  128. 

*  Where  service  has  been  made  by  publication,  and  the  defendant  fails  to  ap« 
pear,  an  order  should  be  made  approving  the  publication,  as  in  Entry  No.  33. 
"Sec.  5C90. 


216  JOURNAL    ENTRIES.  [SEC,  5695- 

either  of  said  children,  or  with  the in custody  of 

them,  and  from  visiting  said  chikh^en  until  further  order  of 
court.^ 

\_0r,  the  other  'party  may  be  given  the  frivilege  of  visiting  said 
children,  as  the  court  may  direct,  in  form  as  follows  .-I — But  it  is 

hereby  ordered  that  the  have  the  privilege  of  visiting 

said  children  twice  each  week,  on  Tuesdays  and  Fridays,  be- 
tween the  hours  of  3  and  5  o'clock  p.  m.  ;  and  any  violation 
of  this  privilege  by  either  party  may  be  reported  to  this  court. 

And  the  court  find  that  the  plaintiff  is  the  owner  of  the 
following  described  real  estate,  not  heretofore  disposed  of, 
to  wit  [desciibe  specifically'],  and  the  same  is  hereby  restored 
to  her  divested  of  all  and  every  claim,  title,  and  interest  by 
curtesy  or  otherwise  of  her  said  husband.^ 

It  is  further  ordered  and  adjudged  that  the  said  plaintiff 
have  and  possess  as  and  for  alimony  the  following  described 
real  estate,^  to  wit  \clescribe  specifically'].  And  the  said  de- 
fendant is  hereby  ordered  to  convey  said  premises  and  the 
improvements  thereon,  and  all  the  appurtenances  thereto  ap- 
pertaining and  belonging,  to  said  plaintiff,  her  heirs  and 
assigns  forever,  by  a  good  and  sufficient  deed  in  fee  simple, 
free  from  any  right  or  claim  of  said  defendant  to  any  estate 
by  the  curtesy,  or  otherwise,  therein.  And  it  is  further  or- 
dered that  upon  the  failure  of  said  defendant  to  execute  said 
conveyance  within  five  days  from  the  entry  hereof,  that  this 
decree  shall  operate  as  such  conveyance,*  and  in  that  case  it 
is  ordered  that  the  clerk  cause  so  much  of  this  decree  to  be 
recorded  in  the  office  of  the  recorder  of  this  county  as  will 
show  such  change  of  title. ^ 

And  it  is  further  ordered  and  adjudged  that  said  plaintiff 


1  The  jurisdiction  of  the  court  is  continuing,  and  may,  on  proper  application, 
be  invoked  to  modify  orders  originally  made  in  respect  to  the  custody  of  chil- 
dren.    Hoffman  v.  Hoffman,  15  Ohio  St.  427. 

2Sec.  5G99.  Proper,  when  the  divorce  has  been  granted  by  reason  of  the 
husband's  aggression. 

'Sec.  5099.  Where  alimony  is  allowed  in  real  estate,  under  sec.  7  (5699),  the 
absolute  title  in  fee  may  be  decreed.     Broadwell  v.  Broadwell,  21  Ohio  St.  657. 

*  By  sec.  5318.  For  an  order  that  a  master  make  conveyance,  see  Entry  No. 
289,  anie. 

*  Sec.  4138. 


-5702.]  DIVORCE  AND  ALIMONY.  217 

do  also  have,  possess,  and  enjoy,  as  and  for  alimony,  the  fol- 
lowing personal  property,  with  the  right  to  use,  sell,  or  dis- 
pose thereof,  at  her  pleasure,  to  wit :  All  her  wearing  apparel, 
and  all  the  household  and  kitchen  furniture  now  in  the  pos- 
session of  said  plaintiff,  and  situate  in  the  premises  above  de- 
scribed. 

It  is  farther  ordered  and  adjudged  that  the  defendant  pay 
to  the  plaintiff"  as  her  reasonable  alimony  in  money  the  sum 

of dollars,  payable  \_as  the  court  may  direct'].     And  the 

same  is  hereby  made  a  lien  upon  all  the  real  estate  of  the  said 
defendant.^  And  in  default  of  any  such  payment  for  three 
days,  execution  is  allowed  to  issue  therefor. 

It  is  further  ordered  that  the  petitioner  be,  and  she  hereby 
is,  restored  to  her  maiden  name  of  C.  P.^ 

It  is  further  considered  by  the  court  that  the  said  re- 
cover from  the  said her  costs  herein  expended.    [^Or,  that 

the  plaintiff  pay  the  costs  of  this  proceeding;  and  execution 
is  awarded.] 

408.  Decree  for  defendant  refusing  divorce. 
[Title.'] 

This  cause  came  on  this  day  to  be  heard  on  the  pleadings 
and  the  evidence,  and  on  consideration  thereof  the  court 
find  that  the  defendant  has  not  been  guilty  of  [the  charge  of 
the  'petition'],  as  charged  by  the  said  plaintiff,  but  has  in  all 
respects  conducted  himself  [or,  herself]  as  a  good  and  faith- 
ful husband  [or,  wife]. 

It  is  therefore  considered  by  the  court  that  the  petition 
herein  be,  and  the  same  hereby  is,  dismissed  at  the  cost  of 
the  said . 

409.  (Sec.  5702.)     Decree  of  divorce,  or  for  alimony,  for  defend- 

ant on  cross-petition. 
[Title.'] 

]!!^ow  came   the  parties  herein,  and  thereupon  this  cause 

came  on  for  hearing  on  the  petition  of  the  plaintiff,  the  an- 

1  A  decree  for  alimony,  to  be  paid  by  installments,  does  not  operate  as  a  lien 
upon  the  real  estate  of  the  defendant,  unless  made  a  charge  thereon  by  the  de- 
cree itself.     Olin  v.  Hungerford,  10  Ohio,  269. 

*  See  note  2,  preceding  page. 


218  JOURNAL    ENTRIES.  [SEC.  5702- 

swer  and  cross-petition  ofthe  defendant,  and  the  evidence  ;  on 
consideration  whereof,  the  court  find  that  the   plaintiff,  at 

the  time  of  filing petition,  had  been  a  resident  of  the 

State  of  Ohio  for  one  year  next  preceding  the  same,  and  was 

at  the  time  a  bona  fide  resident  of  the  county  of ,  and 

that  the  parties  were  married  as  stated  in  the  petition. 

The  conrt  further  find  that  the  defendant  has  not  l)een 
ffuiltv  of  the  neglect  and  misconduct  as  charged  in  the  peti- 
tion, but  has  in  all  respects  conducted  as  a  good  and 

faithful ,  and  the  said  petition  is  therefore  dismissed. 

The  court  further  find  upon  the  cross-petition  and  the 
evidence,  that  the  plaintiff  has  been  guilty  of  [here  state  cause 
of  divorce,  and  continue  in  form  as  from  *,  in  decree  for  plaint- 
iff, No.  407,  or,  if  for  cdimovy.  No.  411.] 

410.  (Sec.  5701.)      Order  for  cdimony  pendente  lite. 

[  Title:] 

On  motion  of  the herein,  by  her  attorney,  and  good 

cause  being  shown,  it  is  hereby  ordered  that  she  be  allowed 
the  sum  of dollars  per  month  for  the  support  and  main- 
tenance of  herself  [and  minor  children]  during  the  continu- 
ance of  this  action,  and  that  she  also  be  allowed  the  sum  of 
dollars  as  and  for  her  expenses  in  conducting  this  ac- 
tion.    [Or,  her  defense.] 

It  is  therefore  ordered  that  the  said pay  to  the  said 

,  or  her  attorney,  J.  R.,  the  sum  of dollars  immedi- 
ately upon  [or,  within days  after]  the  service  of  this  or- 
der ;  and  also  the  said  sum  of dollars  upon  the  first  day 

of  each  and  every  month  during  the  continuance  of  this  ac- 
tion. And  in  default  of  any  of  such  payments  for  three  days, 
execution  is  allowed  to  issue  therefor. 

The  court  maij  further  order:] 

It  is  further  ordered  that  the  said  A.  B.  have  the  possession 
and  use  of  the  household  furniture  [describe  sufficiently  to  make 
definite^,  during  the  pendency  of  this  suit ;  and  the  said  C.  D. 
is  hereby  enjoined  from  interfering  with,  or  disturbing  her 
in  the  possession  and  use  thereof.^ 

1  Edwards  v.  Edwards,  W.  308. 


-5703.]  DIVORCE    AND    ALIMONY.  21^ 

411.  (Sec.  5703.)     Decree  for  alimony  on  petition. 

[Title.] 

Find  as  in  No.  406  or  No.  407,  according  to  circumstances.,  to 
J,  and  continue:] — that  the  plaintiif  was,  at  the  time  of  filing 

her  petition,  a  bona  fide  resident  of  this  county  of ^  [or., 

that  the  cause  of  complaint  arose  in  this  county].^ 

The  court  further  find  upon  the  evidence  that  the  defend- 
ant has  been  guilty  of  [here  state  one  of  the  causes  mentioned 
in  sec.  5702].*  and  that  by  reason  thereof  the  plaintifl'  is  en- 
titled to  alimony  out  of  the  estate  of  her  husband,  the  said 
defendant. 

It  is  therefore  ordered  and  adjudged  that  the  said  plaintiff 
do  have  and  possess  as  and  for  alimony  the  following  de- 
scribed real  estate,^  to  wit:  [describe  specifically].  And  the 
said  defendant  is  hereby  ordered  to  convey  said  premises  and 
the  improvements  thereon,  and  all  the  appurtenances  thereto 
appertaining  and  belonging,  to  said  plaintiff,  her  heirs  and 
assigns  forever,  by  a  good  and  sufficient  deed  in  fee  simple, 
free  from  any  right  or  claim  of  said  defendant  to  any  estate 
by  the  curtesy,  or  otherwise,  therein.  And  it  is  further  or- 
dered that  upon  the  failure  of  said  defendant  to  execute  said 
conveyance  within  five  days  from  the  entry  hereof,  that  this 
decree  shall  operate  as  such  conveyance,^  and  in  that  case  it 
is  ordered  that  the  clerk  cause  so  much  of  this  decree  to  be 
recorded  in  the  office  of  the  recorder  of  this  county  as  will 
show  such  change  of  title.* 

And  it  is  further  ordered  and  adjudged  that  said  plaintiff 
do  also  have,  possess,  and  enjoy,  as  and  for  alimony,  the  fol- 
lowing personal  property,  with  the  right  to  use,  sell,  or  dis- 
pose thereof,  at  her  pleasure,  to  wit :  All  her  wearing  apparel, 
and  all  the  household  and  kitchen  furniture  now  in  the  pos- 
session of  said  plaintiff,  and  situate  in  the  premises  above 
described. 

It  is  further  ordered  and  adjudged  that  the  defendant  pay 
to  the  plaintiff  as  her  reasonable  alimony  in  money  the  sum 

of dollars,  payable   [as  the  court  7nay  direct].     And  the 

same  is  hereby  made  a  lien  upon  all  the  real  estate  of  the 

1  By  sec.  5690.  2  See  note  3,  p.  216. 

*See  note  4,  p.  216.  *  By  soc.  41^8. 


220  JOURNAL    ENTRIES.  [SEC.  5703- 

said  defendant.^  And  in  default  of  any  such  payment  for 
three  days,  execution  is  allowed  to  issue  therefor. 

It  is  further  ordered  that  the  custody,  care,  education,  and 
control  of  the  said  children  of  the  parties  hereto  he,  until 

further  order,  confided  to  the  said exclusively.    And  the 

is  hereby  enjoined  from  interfering  in  any  manner  with 

either  of  said  children,  or  with  the in custody  of 

them,  and  from  visiting  said  children  until  further  order  of 
court.^ 

\_0r,  the  other  'party  may  he  given  the  privilege  of  visiting  said 
children,  as  the  court  may  direct,  inform  as  follows: — But  it  is 

hereby  ordered  that  the have  the  privilege  of  visiting 

said  children  twice  each  week,  on  Tuesdays  and  Fridays, 
between  the  hours  of  3  and  5  o'clock,  p.  m.;  and  any  viola- 
tion of  this  privilege  by  either  party  may  be  reported  to  this 
court.^] 

And  the  court  find  that  the  plaintiff  is  the  owner  in  fee 
simple  of  the  following  described  real  estate,  to  wit  [describe'], 
and  the  same  is  therefore  restored  to  her,  divested  of  all  and 
every  claim,  title,  and  interest  of  her  said  husband.^  And  it 
is  further  ordered  and  adjudged  that  the  said  plaintiff  have 
and  be  invested  with  the  right  and  power  of  a  feme  sole  to 
acquire,  hold,  manage,  and  dispose  of  property,  money,  and 
choses  in  action,  and  to  bring  and  maintain  suits  in  her 
own  behalf,  free  from  the  control  or  interference  of  her  said 
husband. 

{_0r,  the  court,  instead  of  the  last  paragraph,  may  order :^ — 
And  the  court  finding  that  the  plaintiff  is  the  owner  of  certain 
real  estate,  to  wit  [describel,  it  is  therefore  ordered  that  W.  P. 
and  E.  C.  be,  and  they  hereby  are,  appointed  trustees  for  the 
said  plaintiff,  and  are  invested  with  the  title  of  said  real  es- 
tate, with  power  to  hold  and  manage  the  same  for  her  use 
and  benefit ;  also,  with  power  to  acquire,  hold,  manage,  and 
dispose  of  property,  money,  and  choses  in  action  belonging 

1  See  note  1,  p.  217. 

2  The  jurisdiction  of  the  court  is  continuing,  and  may,  on  proper  application, 
be  invoked  to  modify  orders  originally  made  in  respect  to  the  custody  of  chil- 
dren.    Hoffman  v.  Hoffman,  15  Ohio  St.  427. 

3  By  sec.  5703. 


-5706.]  DIVORCE  AND  ALIMONY.  221 

to  lier,  for  her  use  and  benefit,  and  to  bring  and  maintain 
suit  in  her  behalf.] 

It  is  further  ordered  that  the  said  defendant  pay  the  costs 

herein,  taxed  at  | ,  within  five  days,  or  that  execution  be 

allowed  to  issue  therefor. 

Sec.  5704.     For  order  changing  venue,  see  Entry  No.  29. 

Marriage  void  ab  initio — 

The  marriage  contract  of  one  affected  with  congenital  imbecility  of 
mind  to  a  degree  rendering  him  incapable  of  consent,  is  void  ah  initio, 
and  a  court  of  chancery  may  declare  such  marriage  a  nullity.' 

412.  Decree  declaring  marriage  void  ah  initio. 
[Title.] 

Finding  III.,  'page  99,  or  IV.,  ^^a^elOO,  to  *,  and  continue ;] — 
as  claimed  in  the  petition,  that,  at  the  time  the  marriage  con- 
tract between  the  said  A.  B.  and  C.  D.  was  entered  into,  the 
said  A.  B.  was,  by  reason  of  mental  imbecility,  incapable  of 
making  any  valid  consent  to  the  said  contract. 

It  is  therefore  considered  and  decreed  that  the  marriage 
contract  between  the  said  A.  B.  and  C.  D.  be,  and  the  same 
hereby  is,  declared  ah  initio  null  and  void,  and  of  no  force 
and  efifect  to  bind  either  of  the  said  parties.  [Conclude  with 
any  farther  order  the  court  may  make.'] 

Husband  wasting  property — 

413.  (Sec.  5705.)     Decree  enjoining  hushand  from  disposing  of 

property,  etc. 

[Title.] 

As  in  No.  406,  or  in  No.  407,  according  to  circumstance,  to  f , 
and  continue :] — that  the  defendant  is,  as  alleged  in  the  peti- 
tion, about  to  waste  and  squander  the  property  of  the  plaint- 
iff, consisting  of  [specify]. 

It  is  therefore  adjudged  and  decreed  that  the  defendant, 
C.  D.,  be,  and  he  hereby  is,  perpetually  enjoined  from  dispos- 
ing of,  or  otherwise  interfering  with,  her  said  property. 

And  it  is  further  ordered  that  C.  H.  A.  be,  and  he  hereby 

^Waymire  v.  Jetmore,  1872,  22  Ohio  St.  271. 
15 


222  JOURNAL   ENTRIES.  [SEC.  5707- 

is,  appointed  receiver^  of  said  property,  to  take  possession 
of,  and  to  manage  and  control  the  same  for  the  benefit  of 
said  plaintiiF.  And  the  said  defendant,  and  all  other  persons 
having  any  of  said  property  in  their  possession  or  under 
their  control,  are  hereby  ordered  to  deliver  the  same  to  the 
said  C.  n.  A.  npon  his  demand. 

And  it  is  ordered  that,  before  entering  upon  his  duties, 
such  receiver  execute  to  the  said  plaintiff  an  undertaking, 
conditioned  according  to  law,  in  the  sum  of  $ . 

And  now  came  the  said  C.  H.  A.,  and  presented  his  said 
undertaking,  with  "W.  P.  and  J.  R.  D.  as  his  sureties,  to  the 
approval  of  the  court,  and  was  duly  sworn  as  such  receiver. 

And  it  is  further  ordered  that  the  defendant  pay  all  the 
costs  of  this  proceeding. 


CHAPTER  Vn. 

•     DOWER. 

414.  (Sec.  570S.)     General  decree  for  dower. 

414a.  (Sec.  5714.)    "Decree  for  assignment  of  dower,  as  of  a  third  part  of 
rents,  issues,  and  profits. 

415.  (Sec.  5708.)     Decree  for  dower  in  property  sold  by  husband  without 

joinder  of  wife. 
Confirmation — 

416.  (Sec.  5713.)     Decree  of  confirmation,  when  dower  has  been  assigned 

by  metes  and  bounds. 

417.  (Sec  5713.)     Confirmation,  where  commissioners  have,  under  general 

decree,  assigned  dower  of  rents,  etc. 
417a.  (Sec.  5713.)     Decree  of  confirmation,  when  dower  was  decreed  as 
of  rents,  etc. 

Recovery  of  land  fraudulently  assigned  as  dower — 

418.  (Sec.  5717.)     Decree  for  recovery,  etc. 

Discharging  land  of  dower  of  insane  woman — 

419.  (Sec.  5722.)     Committee  appointed  to  examine,  etc. 

420.  (Sec.  5723.)     Insanity  found,  and  appraisement  ordered. 

421.  (Sec.  5724.)     Decree  for  conveyance  in  fee,  etc. 

422.  (Sec.  5724.)     Decree  for  conveyance  for  life,  etc. 

423.  (Sec.  5724.)     Decree  ordering  investment,  etc. 

1  See  sec.  5587,  and  Entries  Nos.  354,  ct  seq. 


-5708.]  DOWER.  223 

Barring  dower  of  insane   person. 

424.  (Sec.  5725.)     Order  for  securing  money  to  her  use  by  mortgage. 

425.  (Sec.  5725.)     Final  decree. 

If  it  is  not  shown  to  the  court  that  the  premises  in  which  the  dower 
is  asked  are  entire,  and  can  not  be  divided  by  metes  and  bounds,  agen^ 
eral  decree  Avill  be  entered  providing  for  the  assignment  of  dower  by 
metes  and  bounds,  or  of  a  third  part  of  the  rents,  issues  and  profits. 

If  it  be  shown  to  the  court  that  such  premises  are  entire,  the  decree 
may  provide,  under  sec.  5714,  only  for  assignment  of  dower  as  of  a 
third  part  of  the  rents,  issues  and  profits. 

414.  (Sec.  5708.)     General  decree  for  dower. 

[Title.-] 

And  now  this  cause  coming  iij^  for  hearing  upon  the  peti- 
tion \jf  other  pleadings  have  beenjiled,  name  thern]  and  the  evi- 
dence, the  court  find  that  all  of  the  defendants  have  been 
duly  served  with  summons  herein  [and  are  in  default  for 
answer.] 

The  court  further  find  that  the  said  J.  B.  was,  in  his  life- 
time, seized  in  fee  simple  of  the  real  estate  and  premises  de- 
scribed in  the  petition  [or,  state  other  interest  held  at  time  of 
decease  inovided  for  by  statute'],  and  that  the  plaintiff  is  the 
widow^of  the  said  J.  B.,  deceased  ;  [that  the  said  J.  B.  died 
leaving  a  last  will  and  testament,  which  was  duly  proven  and 
admitted  to  probate ;  that  the  said  plaintiff  has  appeared  in 
the  Probate  Court  of  this  county,  and  elected  not  to  take 
under  the  said  will] ;  and  that  she  is  entitled  to  have  her 
dower  in  the  said  premises  assigned  and  set  off  to  her,  as 
prayed  in  her  said  petition.* 

It  is  therefore  ordered,  adjudged  and  decreed  by  the  court 
that  the  said  plaintiff  be  endowed  of  one  full  equal  third  part 
of  the  premises  described  in  the  petition  [if  they  can  be 
divided  by  metes  and  bounds.  If  said  premises  are  entire  and 
can  not  be  so  divided,  then  it  is  ordered  that  dower  be  as- 
signed as  of  a  third  part  of  the  rents,  issues  and  profits  thereof];^ 

1  By  amendment  of  April  3,  1889,  86  v.  184,  a  widower  is  given  the  same  right 
of  dower  as  a  widow,  and  the  decrees  will  be  in  the  same  form  as  for  a  widow. 

2  By  sec.  5714.  This  clause  in  brackets  need  not  be  put  in  the  decree  if  it  is 
known  that  the  premises  can  be  divided  by  metes  and  bounds. 


224  JOURNAL    ENTRIES.  [SEC.  5708- 

and  that  a  writ  issue  to  the  sheriff  of county,  commanding 

him  that  by  the  oaths  of  E.  F.,G.  H.,aud  J.  K.,  three  judicious, 
disinterested  men  of  the  vicinity,  in  the  said  county,  who  are 
not  of  kin  to  either  of  the  parties,^  and  who  are  hereby  ap- 
pointed commissioners  for  that  purpose,  he  cause  to  be  set 
off  and  assigned  the  dower  to  said  plaintiff,  in  manner  as  above 
ordered.  And  that  of  such  proceedings,  together  with  the 
said  commissioners'  appraisement  of  the  yearly  net  value  of 

said  real  estate,  estimated  from  the day  of to  the 

day  of  such  assignment  of  dower,  the  said  commissioners 
and  the  said  sheriff  make  return  without  unnecessary  delay 
[or  at  some  appointed  time?'] 

414a.  (Sec.  5714.)  Decree  for  assignment  of  dower  as  of  a  third 
part  of  the  rents,  issues  and  profits. 

[Title.] 

As  in  last  to^  and  contiyiue-] — 

And  the  court  finding  from  satisfactory  evidence  that  said 
estate  is  entire,  and  can  not  be  divided  by  metes  and  bounds, 
it  is  therefore  ordered,  adjudged  and  decreed  that  dower  be 
assigned  to  the  said  plaintiff  as  of  a  third  part  of  the  rents, 
issues  and  profits  of  the  premises  -described  in  the  petition, 
and  that  a  writ  issue  to  the  sheriff  of county  command- 
ing him  that  by  the  oaths  of  E.  F.,  G.  H.,  and  J.  K.,  three 
judicious,  disinterested  men  of  the  vicinity  in  the  said  county, 
who  are  not  of  kin  to  either  of  the  parties,^  and  who  are 
hereby  appointed  commissioners  for  that  purpose,  he  cause 
the  dower  of  the  said  A.  B.  to  be  set  off  and  assigned  in  man- 
ner as  above  ordered.  And  that  if  his  proceedings,  together 
with  the  said  commissioners'  appraisement  of  the  yearly  net 

value  of  said  estate,  estimated  from  the day  of to 

the  day  of  such  assignment  of  dower,  he  make  due  return  [or 
at  some  apjjointed  time.^] 

1  By  sec.  5712. 

2  By  sec.  5713. 


-5713.]  DOWER.  225 

415.  (Sec.  5708.)     Decree  for  dower  in  property  sold  by  husband 

loitkout  joinder  ofivife.^ 

[Title.] 

And  now  this  cause  coining  on  for  hearing  on  the  petition 
[if  other  pleadings,  name  them~\  and  the  evidence,  the  court  find 
that  all  of  the  defendants  have  been  duly  served  with  sum- 
mons [and  are  in  default  for  answer.] 

The  court  further  find  that  the  defendant  is  in  possession 
of  the  premises  described  in  the  petition,  claiming  to  own  the 
same  in  fee  simple,  and  has  so  been  in  possession  since  the 
day  of ,  18—. 

The  court  further  find  that  the  plaintifip  was  married  to  the 
said  M.  B.,  as  in  her  petition  set  forth,  and  that  the  said  M. 
B.  is  now  deceased ;  that  during  said  coverture  the  said  M.  B., 
from  whom  the  title  of  the  defendant  is  derived,  was  seized 
of  the  real  estate  in  the  petition  described  as  an  estate  of  in- 
heritance [or,  state  other  interest  held  at  time  of  decease,  as  pro- 
vided for  by  statute'],  and  that  the  same  was  sold  at  judicial  sale 
as  the  property  of  the  said  M.  B.,  in  proceedings  to  which 
this  plaintiif  was  in  no  manner  made  a  party,  or  her  appear- 
ance in  any  way  efifected.  And  the  said  proceedings  did  not 
bar  her  right  to  dower  in  the  said  premises,  and  that  she  is 
entitled  to  have  the  same  set  ofiTand  assigned  to  her,  as  prayed 
for  in  her  said  petition  [conclude  asfrom^  in  No.  414,  or,  as  in 
last  decree,  according  to  circumstances.] 

Confirmation — 

416.  (Sec.  5713.)     Decree  of  confirmation  when  dower  has  been 

assigned  by  metes  and  bounds. 

[Tdle:] 

This  cause  came  on  for  hearing  upon  the  return  of  the 
sheriff  and  of  the  commissioners  herein,  of  their  proceedings 
in  the  assignment  of  dower  under  the  former  order  of  this 
court,  and  on  the  motion  to  confirm  the  same.  And  the  court 
being  fully  advised  in  the  premises,  find  said  proceedings  and 
assignment  in  all  respects  in  conformity  to  law,  and  hereby 
approve  and  confirm  the  same.* 

'See  note  1,  p.  223. 


226  JOURNAL    ENTRIES.  [SEC.  5713- 

It  is  therefore  ordered  and  decreed  that  the  said  A.  B.  have 
and  possess  the  Lands  so  assigned,  to  wit  \describe],  as  and  for 
her  [or,  his]  reasonable  dower  in  said  premises. 

It  is  further  ordered  that  the  said  defendant  pay  to  said 

plaintiff  the  sum  of dollars,  being  one-third  of  the  sum 

returned  by  said  commissioners  as  the  net  value  of  said  prem- 
ises, from  the  time  of  filing  this  petition  to  the  assignment  of 
dower/ 

It  is  further  ordered  [as  to  costs  see  section  5718.] 

417.  (Sec.  5713.)  Confirmation  where  the  commissioners  have 
under  the  general  decree  [No.  414]  assigned 
dower  of  rents,  issues  and  profits. 

[Title.] 

This  cause  now  came  on  for  hearing  upon  the  return  of  the 
sheriff  and  of  the  commissioners  herein,  of  their  proceedings 
in  the  assignment  of  dower  under  the  former  order  of  the 
court,  and  on  the  motion  to  confirm  the  same.  And  it  ap- 
pearing from  the  report  of  said  commissioners  that  dower 
could  not  be  assigned  in  said  premises  by  metes  and  bounds, 
and  that  they  have  assigned  the  same  as  of  a  third  part  of  the 

rents,  issues,  and  profits,  in  the  annual  sum  of  dollars, 

the  court  find  said  proceedings  in  all  respects  in  conformity 
to  law,  and  do  hereby  approve  and  confirm  the  same. 

It  is  therefore  considered  that  the  said  A.  B.  do  stand  en- 
dowed of  the  rents,  issues,  and  profits  of  the  said*  premises 

in  the  annual  sum  of dollars.     And  the  said  premises 

are  hereby  charged*  with  the  payment  of  the  same  on  the 

day  of of  each  and  every  year  of  the  natural  life 

of  the  said  A.  B. 

It  is  further  decreed  that  the  said  defendant  pay  to  the  said 

plaintiff"  the  sum  of dollars,  being  one-third  of  the  sum 

returned  by  said  commissioners  as  the  net  value  of  said  prem- 
ises from  the  time  of  filing  this  petition  to  the  assignment  of 
dower.^ 

It  is  further  ordered,  etc.     [As  to  costs,  see  section  5718.] 

^  Bv  sec.  5715. 


-5721.]  DOWER.  227 

417a.  (Sec.  5713.)  Decree  of  confirmation  v)hen  dower  was  de- 
creed 0$  of  rents,  issues,  and  profits  by 
decree  No.  414a. 

[7  die.] 

As  In  No.  410  to  *,  add  conti7iuc:'\ 

It  is  therefore  ordered  and  decreed  that  the  said  A.  B.  stand 
endowed  as  of  tlie  rents,  issues,  and  profits  of  the  premises 
described  in  tlie  petition  in  the  annual  sum  of  $ ,  as  as- 
signed to  her  by  the  said  commissioners.  And  the  said  prem- 
ises are  hereby  charged  with  the  payment  of  the  same. 

It  is  further  ordered  that  the  said  defendant  pay  to  said 

phiintifF  the  sum  of dollars,  being  one-third  of  the  sum 

returned  by  said  commissioners  as  the  net  value  of  said 
premises  fi'om  the  time  of  filing  this  petition  to  the  assign- 
ment of  dower.' 

It  is  further  ordered,  etc.     \_As  to  costs,  see  section  5718.] 

Recovery  op  land  fraudulently  assigned  as  dower — 

For  remarks  coiiceruiug  recovery  of  land,  and  for  forms  when  the 
case  is  tried  by  jury,  see,  j)Ost,  under  section  5781. 

418.  (Sec.  5717.)  Decree  for  recovery  of  land  fraadalciitly  as- 
signed as  dower. 

ITitle.'] 

If  rendered  on  tri(d  by  the  court  use  Finding  III.,  page  09  ; 
if  by  default.  Finding  IV.,  page  100,  and  continue  ;] 

The  court  furtlier  find  that  the  dower  heretofore  assigned 
to  the  said  C.  D.,  in  the  premises  described  in  the  petition,  was 
assigned  by  fraud  and  collusion  with  the  guardian  of  the 
phiintift*,  then  a  minor,  and  that  said  C.  D.  was  not  entitled 
to  dower  in  the  said  premises. 

And  the  court  find  that  the  plaintiff',  as  heir-at-law  of , 

has  a  legal  estate  in,  and  is  entitled  to  the  immediate  posses- 
sion of,"-  the  property  described  in  the  petition  wrongfully 
awarded  as  above  found  to  the  said  C.  D.;  and  that  the  de- 
fendant unlawfully  keeps  him  out  of  the  same. 

It  is  therefore  considered  and  decreed  by  the  court  that  the 
said  A.  B.  recover  from  the  said  C.  D.  the  real  estate  de- 

1  By  sec.  5715.  ^  See  sec.  5781. 


228  JOURNAL   ENTRIES.  [SEC.  5722- 

Bcribed  in  the  petition,  to  wit  [describe'],  together  with  his 
costs  herein  expended.  And  it  is  ordered  that  the  clerk  cause 
so  much  of  this  decree  to  be  recorded  in  the  office  of  the  re- 
corder of  this  county  as  will  show  such  change  of  title. ^ 

And  it  is  ordered  that  a  writ  issue  to  the  sheriff  of 

county,  commanding  him  to  put  the  said  plaintiff  in  posses- 
sion of  the  said  premises.^ 

Discharging  land  of  dower  of  insane  person.  ^ 

419.  (Sec.  5722.)     Committee  appointed  to  examine,  etc. 
[Title.] 

This  cause  coming  on  for  hearing  on  the  petition  of  the 
plaintiff,  alleging  the  insanity  of  the  said  C.  B.,  and  no  good 
cause  being  shown  to  the  contrary,  the  court  appoints  H,  F., 
etc.,  six  competent  men  as  required  by  law,  a  committee  to 
inquire  under  oath  into  the  fact  of  the  insanity  of  the  said 
C.  B.,  and  to  report  in  writing,  without  unnecessary  delay, 
after  hearing  testimony  in  the  case,  the  result  of  their  in- 
vestigations. 

And,  the  said  C.  B.  having  no  legal  guardian,  A.  L.  is 
hereby  appointed  guardian  ad,  litem  in  this  action  to  produce 
testimony  to  the  above  named  committee. 

420.  (Sec.  5723.)     Insanity  found,  and  appraisement  ordered. 
[Tdle.] 

And  now  this  cause  coming  on  for  consideration  on  the  report 
of  the  committee  heretofore  appointed  lierein,  and  it  appear- 
ing by  said  report  that  the  said  C.  B.  is  permanently  insane, 
it  is  ordered  tluit  T.  K.  P.,  II.  F.  M.,  and  F.  M.,  three  judi- 
cious freeholders,  be,  and  they  hereby  are,  appointed  ap- 
praisers to  appraise  the  real  estate  described  in  the  petition, 
and  to  report  in  writing,  without  unnecessary  delay,  the  value 
of  each  tract. 

421.  (Sec.  5724.)     Decree  for  conveyance  in  fee,  etc, 
[Title.] 

And  now  this  cause  coming  on  for  hearing  on  the  petition 
and  all  the  former  proceedings  herein,  as  well  as  upon  the 
report  of  the  appraisers  heretofore  appointed  by  the  court, 

1  By  sec.  4138.  ^  gee  note  6,  p.  117. 

3  By  amendmpnt  of  April  8,  1889,  86  v.  186  et  seq.,  sees.  5722-5725  inclusive 
are  made  to  rehtte  to  the  dnwpr  of  widower  as  well  as  widow.  Entries  under 
these  fcuctioi.s  may  be  modified  accordingly. 


-5724.]  DOWER.  229 

of  their  valuatiou  of  the  real  estate  described  in  the  petition, 
and  upon  the  evidence  adduced,  the  court  find  the  value  of 
the  dower  \_or,  contingent  dower]  interest  of  the  said  C.  B. 
in  said  real  estate  *  to  be  set  off  to  her  in  fee  simple  to  be 
the  one-sixth  [or  other  proportion']  part  of  the  same. 

It  is  therefore  ordered  and  decreed  that  the  said  petitioner, 
A.  B.,  convey  by  good  and  sufficient  deed  of  conveyance  in 
fee  simple  to  the  said  C.  B.,  as  and  for  her  full  [contingent] 
dower  interest  in  the  real  estate  described  in  the  petition,  the 
following  tracts,  to  wit  [describe]. 

[Add  cuvj  order  that  the  court  may  make  as  to  costs.] 

422,  (Sec.  5724.)     Decree  for  conveyance  for  life,  etc. 
[Title.] 

As  in.  last  to  *,  and  continue:] — to  be  set  off  and  assigned 
to  her  during  life  [If  she  have  a  husband,  say:  during  life 
after  the  death  of  her  husband]  ;  to  be  the  one-third  part  [or 
other  proportion]  of  the  same,  and  the  court  hereby  assign  to 
her,  to  be  held  as  above,  as  and  for  her  full  dower  interest  in 
the  premises  described  in  the  petition  the  following  tracts, 
to  wit  [describe]. 

[Add  any  order  the  court  may  make  as  to  costs.] 

423.  (Sec.  5724.)     Decree  ordering  investment,  etc. 
[Title.] 

As  in  Xo.  421  to  *,  and  continue:] — to  be  set  off  in  money 
and  invested  by  the  said  petitioner  for  the  support  and  main- 
tenance of  the  said  C.  B.  [after  the  deatli  of  her  husband], 
to  be  § . 

It  is  therefore  ordered  and  decreed  that  the  said  petitioner 

invest  the  said  sum  of  $ in   the   stock  of .  the 

profits  and  dividends  of  the  same  to  be  applied  to  the  support 
and  maintenance  of  the  said  C.  B.  [after  the  death  of  her 
hiisijuud] ;  which  said  stock  shall  be  placed  in  the  hands  of 
C.  R.  W.,  guardian  of  tlie  said  C.  B.,  to  be  by  him  held  and 
applied  as  aforesaid;  and  thereupon  the  real  estate  in  the 
petition  described  shall  be  released  from  the  [contingent] 
dower  interest  of  the  said  C.  B. 

[Add  any  order  as  to  costs  that  the  court  niai/  iri<iJ:i .'] 


230  journal  entries.  [sec.  5725- 

Barring  dower  of  insane  woman — 

The  proceedings  in  this  action,  under  section  5725,  are  similar  to 
those  under  the  last  three.  Entries  Nos.  419,  420,  and  423  are  appli- 
cable here. 

424.  (Sec.  5725.)     Order  for  securing  money  to  her  use  by  mort- 

gage. 

[Title.'] 

As  in  JSo.  421  to  *,  and  continue  ;] — to  be  set  ofi'  in  money 
for  the  support  and  maintenance  of  the  said  C.  B.  after  the 
death  of  her  husband,  to  be  $ . 

It  is  therefore  ordered  that  said  petitioner  secure  the  said 
sum  of  -f ,  to  the  use  of  the  said  C.  B.,  by  good  and  suf- 
ficient mortgage  on  unincumbered  real  estate  of  double  the 
value  of  said  sum,  and  that  thereupon  the  real  estate  in  the 
petition  described  be  released  from  the  contingent  dower  in- 
terest of  the  said  C.  B. 

425.  (Sec.  5725.)     Final  decree. 
[Title.] 

And  now  this  cause  coming  on  to  be  considered  on  the  pe- 
tition, the  former  proceedings,  and  the  evidence,  and  it  being 
shown  to  the  court  that  the  former  order  for  the  investment 
[or,  securing]  of  money  set  apart  for  the  use  of  the  said  C. 
D.  has  been  fully  complied  with  by  the  petitioner,  A.  B.,  it 
is  therefore  ordered  and  decreed  by  the  court  that  the  real 
estate  described  in  the  petition  be,  and  it  hereby  is,  released 
and  discharged  from  the  incumbrance  of  the  [contingent] 
right  of  dower  of  the  said  C.  B. 

And  it  is  further  ordered  that  J.  N.,  the  holder  of  the  legal 
title  to  said  premises,  pay  to  the  said  A.  B.  the  sum  retained 

by  him,  to  wit,  $ ,  as  indemnity  against  said  dower  right. 

[Add  any  order  that  the  court  makes  as  to  costs.] 


-5739.]  HABEAS    CORPUS.  231 


CHAPTER  Vm. 

HABEAS  CORPUS. 

426.  (Sees.  5727  and  5730.)     Writ  granted. 

427.  (Sec.  5729.)     Writ  refused. 

428.  (Sec.  5740.)     Order  continuing  case  on  return  of  writ. 

429.  (Sec.  5741.)     Order  discliarging  jtri-soner. 

430.  (Sec.  5741.)     Order  refusing  the  discharge. 

431.  (Sec.  5742.)     Order  allowing  bail. 

432    (Sec.  5741.)     Order  giving  cu.stody  of  minor  to  petitioner. 

Thi.s  is  one  of  the  four  great  writ.s  of  wliich  the  district  court  is 
giveu  original  jurisdiction  by  the  constitution,  article  4,  section  6. 

The  state  courts  have  full  power  in  habeas  corpus.  So  also  has  a 
judge  at  chambers.'  If  tlie  orders  given  here  are  made  by  a  judge, 
they  must  be  forthwith  entered  ou  the  journal  of  the  court,*  as  if 
made  by  the  court. 

426.  (Sees.  5727,  82  O.  L.  36,  and  5730.)     Writ  granted. 
[Title.] 

Upon  application  of  A.  B.,  duly  made,  a  writ  of  habeas 
corpus  is  granted,  as  prayed  for  in  the  petition,''  for  the  pro- 
duction of  the  body  of  said ,  returnable  on  the day 

of ,18—. 

427.  (Sec.  5729.)      Writ  refused. 
[  Title.] 

Application  being  this  day  made  by  A.  B.  for  a  writ  of 
habeas  corpus  in  his  own  behalf  \or,  to  obtain  the  custody  of 
R.  S.,  a  minor,  and  it  appearing  that  the  said is  in  cus- 
tody of  the  sheriff  of county  [or  other  officer],  under  pro- 
cess issued  by  the court  of ,  which  said  court  had 

jurisdiction  to  issue  such  process  [or  specify  other  cause  in 
section  5729],  the  said  writ  is  refused.  [Add  any  order  as  to 
costs  that  the  court  may  direct.] 

1  See.  5727.  -' Sec.  5331. 

'As  to  form  of  writ,  see  sees.  5733  and  5734. 


282  JOURNAL    ENTRIES.  [SEC.   5740- 

428.  (Sec.  5740.)     Order  continuing  case  on  return  of  writ. 
[Title.] 

^o\v  came  the  sheriff  of county,  and  also  brought  the 

body  of  the  said ,  in  obedience  to  the  command  of  the 

writ  of  habeas  corpus  heretofore  issued  to  him.   And  for  good 

cause  shown,  the  cause  is  now  continued  until  the day 

of ;  and  in  the  meantime  it  is  ordered  that  the  said 

remain  in  the  custody  and  safe-keeping  of  the  said  sheriff. 

429.  (Sec.  5741.)     Order  discharging  prisoner. 
[Title:] 

iN'ow  came  the  sheriff  of  the  said  county  of [and  made 

return  of  the  writ  of  habeas  corpus  heretofore  issued  in  this 
case],  and  also  brought  the  body  of  the  said  A.  B.,  petitioner 
herein.  And  upon  the  hearing  of  the  case  the  court  find 
that  the  said  A.  B.  is  *  unlawfully  imprisoned  [or,  detained] 
by  the  said . 

It  is  therefore  ordered  that  the  said  A.  B.  be  forthwith 
discharged  from  his  said  imprisonment.  [Add  such  order  as 
to  costs  as  the  court  ynay  direct.] 

430.  (Sec.  5741.)     Order  refusing  the  discharge. 
[Tdle.] 

As  ill  last  to  *,  and  continue:] — lawfully  imprisoned  [or,  de- 
tained] by  the  said . 

It  is  therefore  ordered  that  the  said  A.  B.  be  remanded  to 

the  custody  of  the  said  ,  and  that  he  pay  the  costs  of 

this  proceeding  [or  other  order  as  to  costs  by  section  5744]. 

431.  (Sec.  5742.)     Order  allowing  bad. 
[Tiile.] 

As  in  No.  429  to^,  and  continue:] — lawfully  imprisoned  [or, 

detained]  by  the  said .     And,  on  motion,  it  is  ordered 

that  he  be  let  to  bail  upon  entering  into  recognizance  accord- 
ing to  law,  in  the  sum  of  dollars,  conditioned  for  his 

appearance  at  the  next  term  of  the court,  on  the  

day  of ,  to  be  held  in  and  for  the  said  county  of . 

And  in  default  of  such  recognizance,  the  said  A.  B.  shall  be 
remanded  to  the  custody  of  the  said . 


-5753.]  PARTITION.  233 

432.  (Sec.  5741.)     Order  giving  custody  of  minor  to  petitioner. 

[Title.] 

This  cause  came  on  to  be  heard  on  the  petition  and  the 
testimony,  and  the  court  being  fully  advised  in  the  premises 
find  that  the  said  A.  B.  is  entitled  to  the  custody  of  the  said 
E.  B.,  and  that  the  said  E.  B.  is  unlawfully  detained  by  the 
said  L.  Ti,  It  is  therefore  ordered  and  adjudged  that  the  said 
"A.  B.,  the  mother  of  the  said  E.  B.,  have  the  custody  and 
control  of  said  child,  as  prayed  for  in  her  petition :  and  that 
the pay  the  costs  of  this  proceeding. 

If  custody  is  given  to  any  other  ])arty,  the  above  entry  wih  be  modi- 
fied to  facts. 


CHAPTER  IX. 

rARTITIOX. 

436.  (Sec.  5757.)     Decree  for  pai'tition  where  there  is  no  dower  to  be  as- 

signed. 

437.  (Sec.  5761.)     Decree  for  amicable  partition — made  by  commissioners. 

438.  (Sec.  5761.)     Same — without  commissioners. 

439.  (Sec.  5770.)     General  decree  for  partition  and  assignment  of  dower. 

440.  (Sec.  577U.)     Decree  when  widow's  answer  asking  money  value  in 

lieu  of  dower  has  been  filed. 

Confirmation — 

I.  Where  property  has  been  divided  by  .metes  and  bounds. 

441.  Decree  of  confirmation. 

442.  (Sec.  5761.)     Same,  in  amicable  partition,  when  deeds  are  ordered. 

II.  Where  property  could  not  be  divided   by  metes  and   bounds. 

443.  (Sec.  5762.)     Decree  of  confirmation  and  distribution,  when  one  of 

the  parties  elects  to  take  the  premises,  and  has  set- 
tled with  the  other  parties. 

444.  (.Sec.  5762,  3.)     Decree  when  the  party  electing  to  take  the  premises 

makes  payment  to  the  sheriff. 

445.  (Sec.  5762,  3.)     Same,  and  is  ordered  to  j^ay  all  costs. 

446.  (Sec.  5764.)     Decree  of  confirmation  and  order  for  sale  when  no  one 

elects  to  take  the  premises. 

447.  (.'^ec.  5766.)     Sale  subject  to  dower  confirmed,  and  order  for  deed  and 

distribution. 


234  JOURNAL   ENTRIES.  [SEC.    5754- 

III.  Confirmation  and  sale  where  property  codld  not  be  divided  by  metes 

AND  bounds,  and  MONEY  VALUE  IS  GIVEN  IN  LIEU  OF  DOWER. 

448.  (Sec.  5764.)     Decree  of  confirmation  and  order  for  sale  free  of  dower 
when  no  one  elects  to  take  the  premises. 

451.  (Sec.  5764.)     Same — when  dower  or  life  estate  extends  only  to  an 

undivided  interest  in  premises. 

452.  (Sec.  5766.)     Sale  free  of  dower  or  life  estate  confirmed,  and  order 

for  deed  and  distribution. 

Other  provisions — 

453.  (Sec.  5768.)     Order  for  revaluation. 

454.  (Sec.  5768.)     Order  to  sell,  without  revaluation. 

455.  (Sec.  5769.)     Order  for  succeeding  sheriff  to  make  deed. 

The  formal  part  of  the  partition  decree  should  be  specific  in  stating 
the  pleadings  or  in  finding  the  defaults  upon  which  the  case  is  heard, 
as  the  title  to  real  estate  is  concerned. 

When  there  is  a  widow  entitled  to  dower  in  the  estate  to  be  parti- 
tioned, the  court  shall  order  it  to  be  assigned  by  the  coinmi.ssioners  in 
partition,  who  in  doing  it  shall  be  governed  in  all  respects  by  the  pro- 
visions prescribing  the  duties  of  commissioners  to  assign  dower.^  It 
may  therefore  be  assigned  by  metes  and  bounds,  or  "as  of  a  third  part 
of  the  rents,  issues  and  profits,"  the  commissioners  computing  and  as- 
certaining the  same,  and  awarding  to  the  widow  an  annual  sum  ;  ^  or, 
the  court  may,  when  the  estate  can  not  be  divided,  upon  her  answer  ask- 
ing the  same,  order  that  the  estate  be  sold  free  of  dower,  and  that  she  be 
allowed  the  reasonable  value  of  her  dower  in  money,''  which  value  will 
be  ascertained  by  the  court,  based  upon  the  tables  of  mortality.  In 
the  latter  case  the  commissioners  must  simply  appraise  and  return  the 
estate  free  of  dower,  as  they  would  if  there  were'  no  dower  to  be  as- 
signed. 

The  decree  for  partition  and  dower  should  direct  the  course  of  the 
commissioners  as  to  dower. 

In  case  there  is  an  undivided  interest  in  the  land  subject  to  dower, 
and  an  appraisement  of  the  estate  is  to  be  returned,  the  commissioners 
may  assign  the  dower, ^  as  above,  of  the  rents,  issues  and  profits,  or  if 
they  find  it  to  the  interest  of  the  parties  they  may,  in  their  discretion, 
appraise  the  whole  interest,  leaving  the  dower  interest  to  be  valued  by 
the  court  and  paid  out  of  the  proceeds  of  the  sale.* 

In  case  that  an  undivided  interest  in  the  land  is  subject  to  a  life  es- 
tate, and  an  apprai.sement  of  the  land  is  to  be  returned,  the  commission- 

1  By  sees.  5770  and  5771.  ^  By  sec.  5714. 

3  By  sec.  6719,  as  amended  86  v.  185.  <See  further,  note  1,  p.  245. 


-5760.]  PARTITION.  235 

ers  may  set  off  the  life  estate,  unless  the  tenant  for  life  has  elected  to 
receive  the  value  of  his  estate  out  of  the  proceeds  of  sale.  In  the 
latter  case,  or  if  the  commissioners  find  it  to  the  interest  of  the  parties, 
they  may  appraise  the  whole  interest,  leaving  the  tenant  for  life  to  re- 
ceive the  value  of  his  interest  out  of  the  proceeds  of  sale.^ 

436.  (Sec.  5757.)     Decree  for  partition  lohere  there  is  no  dower 
to  be  assigned. 

[Tdlr.A 

And  now  this  cause  coming  on  to  be  heard  upon  the  peti- 
tion [the  answers  of  C.  D.  and  E.  F.,  the  answer  of  A.  W.^ 
minor  defendant,  by  C.  R.,  her  guardian  ad.  litem^  and  the 
evidence,  the  court  find  that  all  of  the  defendants  have  had 
due  legal  notice  of  the  pendency  and  demand  of  the  said 
petition,  and  that  [with  the  exception  of  those  above  named] 
they  are  in  default  for  answer  thereto. 

Thereupon,  tlio  court  further  find  that  the  plaintifi'aud  the 
defendants  hereafter  named  are  tenants  in  common-  in  the 
estate  described  in  the  petition ;  that  the  plaintiff,  A.  B.,  has 
a  legal  right  to  the  one-half  thereof,  the  defendant,  C.  D.,  a 
legal  right  to  the  one-fourth  part  thereof,  and  the  defend- 
ants, E.  F.  and  G.  IL,  each  a  legal  right  to  the  one-eighth  part 
thereof:  and  that  the  plaintiflt'  is  entitled  to  have  partition 
of  said  estate  made,  as  prayed  in  his  petition. 

It  is  therefore  ordered,  adjudged,  and  decreed  that  parti- 
tion of  said  estate  be  made  in  favor  of  all  parties  in  interest 
[or  it  may  be  only  in  favor  of  the  plaintiff"] ;  and  T.  S.,  R.  O., 
and  "W.  T.,  three  judicious  and  disinterested  freeholders  of 
the  vicinity,  are  hereby  appointed  commissioners  to  make 
the  same.* 

And  it  is  ordered  that  a  writ  of  partition  issue  to  the  sheriff 
of county,  commanding  him  that  by  the  oaths  of  the  com- 
missioners above  named  he  cause  to  be  set  off"  and  divided, 
to  each  of  the  above  named  parties  [or  it  may  be  only  to  the 
plaintiff"],  the  part  and  proportion  of  said  estate  to  which 
they  are  severally  [or,  to  which  he  is]  above  found  entitled. 

And  of  his  proceedings  herein,  said  sheriff"  is  ordered  to 
make  due  return. 

1  By  pec.  5770.     See  note  1.  p.  24o.  '  See  sec.  5754. 


236  JOURNAL    ENTRIES.  [SEC.  5761- 

437.  (Sec.  5761,  78  0.  L.  253.)     Decree,  for  amicable  partition — 

made  by  commissioners. 

[Title.'] 

And  now  this  cause  coming  on  to  be  heard  upon  the  peti- 
tion for  partition,  and  the  consent  to  the  partition  therein 
prayed  for,  entered  in  open  court  by  the  said  C.  D.,^  in  per- 
son [or,  by  his  attorney,  C.  W.  G.],  the  court  find  that  the 
plaintiff  and  defendant  are  tenants  in  common  in  the  estate 
described  in  the  petition,^  that  the  plaintiff  has  a  legal  riglit 
to  three-fourths  thereof,  and  the  defendant  a  legal  right  to  tlie 
one-fourth  part  thereof. 

It  is  therefore  ordered,  adjudged,  and  decreed,  by  consent  of 
the  defendant,^  that  partition  of  said  estate  be  made  as  prayed 
for  in  the  petition  [t],  and  T.  S.,  R.  0.,  and  ^\ .  T.,  three 
judicious  and  disinterested  freeholders  of  the  vicinity,  are 
hereby  appointed  commissioners  to  make  the  same. 

[Conclude  as  front  *  in  last  decree.'] 

It  would  seem  that  under  sec.  5761,  78  0.  L.  253,  by  implication  at 
least,  amicable  partition  may  be  decreed  by  the  court,  in  a  proper  case, 
witliout  requiring  the  partition  to  be  made  by  commissioners.  In  that 
case  enter  decree  as  follows  : 

438.  (Sec.  5761.)     Decree  for  amicable  pa^iition — without  coyn- 

missioners. 

[Title.] 

As  in  last  decree  to  [fl,  and  continue:] — and  it  being  unnec- 
essary that  commissioners  be  appointed  to  make  the  same,  it 
is  ordered  and  decreed,  by  consent  of  both  parties,  that  the 
plaintiff,  A.  B.,  have  and  hold  in  severalty  the  part  of  said 
estate  described  as  follows,  to  wit :  [describe.]  And  that  the 
defendant,  C.  D.,  have  and  hold  in  severalty  the  part  of  said 
estate  described  as  follows,  viz.:  [describe]. 

And  the  clerk  is  hereby  directed  to  have  so  much  of  this 
decree  as  will  show  the  transfer  of  title  to  the  said  parties, 
put  on  record  in  the  office  of  the  recorder  of  this  county.^ 

1  Bv  sec.  5772,  the  guardian  of  an  infant,  etc.,  maj^  enter  the  consent.     In  that 
case  let  the  entry  show  that  such  consent  was  made  by  the  guardian. 
-  See  sec.  5754. 
»Bv  sec.  4138. 


.]  PARTITION.  237 

And  it  is  ordered  that  the  costs  of  this  action,  inchiding  a 

counsel  fee  of  $ ,  to  S.  W.,  for  his  services  herein,  taxed  at 

^ ,  he  paid  as  follows  :     \_See  see.  5778.] 

430.  (Sec.  5770.)     General  decree  for  -partition  and  assignment 
of  dower. 
[  Tiller^ 

And  now  this  cause  coming  on  to  be  heard  on  the  petition 
[the  answers  of  C.  D.  and  E.  F.,  the  answer  of  A.  W.,  minor 
defendant,  by  C.  H.,  her  guardian  ad  litem']  and  the  evidence, 
the  court  find  that  all  of  the  defendants  have  had  due  legal  no- 
tice of  the  pendency  and  demand  of  the  said  petition,  and 
that  [with  the  exception  of  those  above  named]  they  are  in 
default  for  answer  thei-eto. 

Thereupon,  the  court  further  find  that  the  plaintiff  and 
the  defendants  hereinafter  named  are  tenants  in  conunon'  in 
the  estate  described  in  the  petition  ;  that  the  said  J.  B., 
widow,  is  entitled  to  dower  therein,  and  that  subject  thereto 
the  plaintiff,  A.  B.,  has  a  k'gal  right  to  the  one-half  of  said 
estate,  the  defendant,  C.  1).,  a  legal  right  to  the  one-fourth 
j)art  thereof,  the  defendants,  E.  E.  and  G.  II.,  each  a  legal 
right  to  the  one-eighth  part  thereof;  and  that  the  plaintiff 
is  entitled  to  have  partition  made  of  said  premises,  as  prayed 
in  his  petition. 

It  is  therefore  ordered,  adjudged,  and  decreed  that  partition 
of  said  estate  be  made,  and  that  dower  therein  be  assigned 
to  the  said  J.  B. ;  and  T.  S.,  R.  0.,  and  W.  T.,  three  judicious 
and  disinterested  freeholders  of  the  vicinity,  are  hereby  ap- 
pointed commissioners  to  make  and  set  off  the  same.* 

And  it  is  ordered  that  if  said  estate  is  entire,  and  can  not 
be  divided  by  metes  and  bounds,  the  dower  of  the  said  J.  B. 
be  assigned  as  of  a  third  part  of  the  rents,  issues,  and  profits 
thereof,- and  that  said  estate  be  appraised,  subject^  to  such 
dower  interest. 

1  See  sec.  5754.  -  Sec.  5714. 

3  If  the  widow  has  not  already  filed  her  answer,  waiving  the  assignment  of 
dower  by  metes  and  bounds,  and  asking  to  have  the  real  estate  sold  free  of 
dower,  and  that,  in  lieu  thereof,  a  sum  of  money  be  paid  her  out  of  the  proceeds 
of  sale,  under  section  5710,  and  if  there  is  a  probability  of  her  doing  so  after 
the  appraisement,  it  will  be  well  t<>  order  that  the  appraisement  be  made  "both 

10 


238  JOURNAL   ENTRIES.  [SEC.  5761- 

And  it  is  ordered  that  a  writ  issue  to  the  sheriff  of 

county,  commanding  him  that  by  the  oaths  of  the  commis- 
sioners above  named  he  cause  to  be  set  oif  and  divided  to 
each  of  the  above  named  parties,  the  part  and  proportion  of 
said  estate  to  which  they  are  hereinbefore  severally  found  en- 
titled, and  also  cause  to  be  set  off  and  assigned,^  in  man- 
ner as  above  ordered,  the  dower  of  the  said  J.  B. 

And  of  his  proceedings  herein,  the  said  sheriff  is  ordered 
to  make  due  return. 

440.  (Sec.  5770.)     Decree  luhen  ividow's  ansioer  asking  money 

value  in  lieu  of  doiver  has  been  filed? 
[Title:] 

As  in  last  to  *,  and  continue:'] 

But  it  is  ordered,  upon  the  answer  of  the  said  J.  B.,  that 
if,  in  the  opinion  of  said  commissioners,  said  estate  can 
not  be  divided  by  metes  and  bounds  without  injury  to  the 
value  thereof,  no  dower  be  assigned,  and  that  said  premises 
be  appraised  free  from  said  dower  interest. 

And  it  is  ordered  that  a  writ  issue  to  the  sheriff  of 

county,  commanding  him  that  by  the  oaths  of  the  commis- 
sioners above  named  he  cause  to  be  set  off  and  divided  to 
each  of  the  above  named  parties,  the  part  and  proportion 
of  said  estate  to  which  they  are  hereinbefore  severally  found 
entitled,  and  also  to  be  set  off  and  assigned  the  dower  of  the 
said  J.  B,  if  said  estate  can  be  divided,  in  manner  as  above. 
And  of  his  proceedings  herein  the  said  sheriff  is  ordered  to 
make  due  return. 

I.  Confirmation,  where  property  has  been  divided  by  metes 

AND    BOUNDS — 

441.  Decree  of  confirmation ? 
[Title.] 

On  motion  to  tlie  court  by  the  plaintiff,  and  upon  produc- 

subject  to  and  free  from  the  dower  interest  of  the  said  J.  B.,"  in  order  to  save 
the  expense  of  another  appraisement,  in  case  she  should  afterwards  file  such 
answer. 

1  By  5gc_  5771.  *  By  sec.  5719.  as  amended  86  v.  185. 

2 If  no  dower  has  been  assigned,  omit  the  part  in  brackets. 


.]  PARTITION.  239 

ing  the  return  of  the  sheriff  and  the  report  of  the  commis- 
sioners heretofore  appointed  herein,  and  the  same  having 
been  examined  by  the  court,  and  found  in  all  respects  correct 
and  in  conformity  to  law  and  the  former  orders  of  this  court, 
the  said  proceedings  and  report  are  hereby  approved  and 
confirmed.* 

It  is  therefore  ordered  and  decreed  that  the  [said  J.  B.  have 
and  possess  the  lands  so  assigned  to  her,  as  and  for  her 
reasonable  dower  in  said  premises  ;  and  that  the  other]^  said 
parties  hold  in  severalty  the  parts  and  premises  so  set  off  and 
assigned  to  each  respectively. 

And  the  clerk  is  hereby  directed  to  have  so  much  of  this 
decree,  as  will  show  the  transfer  of  title  to  the  several  par- 
ties, put  upon  record  in  the  office  of  the  recorder  of  this 
county.^ 

And  it  is  further  ordered  that  the  costs  of  this  action,  in- 
cluding a  counsel  fee  of  $ to  S.  and  W.,  attorneys,  for 

services  herein,^  taxed  at  $ ,  be  paid  by  the  said  par- 
ties in  the  following  pro])ortions,  to  wit  :  \_As  to  costs,  see  sec- 
tion 5778.] 

442.  (Sec.  5761,  78  O.  L.  253.)  Decree  of  confirmation  in  amic- 
able partition,  when  deeds  are 
ordered. 

[Title.'] 

As  in  last  to  *,  and  continue:'] — 

It  is  therefore  ordered  and  decreed  that  said  parties  hold 
in  severalty  the  parts  and  premises  so  set  off  to  them  re- 
spectively ;  and  on  motion  of  the ,  the  sheriff  is  ordered 

to  execute  and  deliver  to  each  of  said  parties  a  deed  for  the 
portion  so  set  off  and  assigned  to  him. 

And  it  is  ordered  that  the  costs  of  this  action,  including  a 

counsel  fee  of  | ,  to  S.  W.  for  his  service  herein,  taxed 

at  $ ,  be  paid  as  follows :  [See  sec.  5778.    ^ 

^See  note  3,  p.  238. 

2  Hy  sec.  4138. 

'The  rule  adopted  by  the  courts  of  Hamilton  county  allows  as  such  fees  two 
per  cent  on  the  first  ten  thousand  dollars  of  the  proceeds  of  sale,  one  per  cent 
on  the  second  ten  thousand,  and  one-half  of  one  per  cent  on  all  above. 


240  JOURNAL    ENTRIES.  [SEC.  5662- 

II.  Confirmation,  where  property  could  not  be  divided  by 

METES    AND    BOUNDS. 

443.  (Sec.  5762.)  Decree  of  confirmation  and  distribution,  lohen 
one  of  the  parties  elects  to  take  the  premises 
and  has  settled  ivith  the  other  parties.^ 

[Title.] 

This  cause  came  on  for  hearing  upon  the  return  of  the 
sheriiF  and  the  report  of  the  commissioners  heretofore  ap- 
pointed herein,  and  on  the  motion  to  confirm  the  same.  And 
it  appearing  from  said  report  that  said  estate  could  not  be 
divided  by  metes  and  bounds  without  injury  to  the  value, 
thereof,  and  that  said  commissioners  have  [assigned  dower 

thereof  to  the  said  J.  B.  in  the  annual  sum  of  dollars, 

as  the  one  third  part  of  the  rents,  issues,  and  profits  of  said 
estate^,  and  have]'  made  and  returned  tlieir  appraisement  of 
said  estate  [subject  to  the   dower  of  the    said    J.    B.j,'    at 

$ ,  the  court  find  the  said  return  and  proceedings  in   all 

respects  correct  and  in  conformity  to  law,  and  do  there- 
fore approve  and  confirm  the  same. 

[It  is  therefore  considered  and  decreed  that  said  J.  B.  stand 
endowed  as  of  a  third   part  of  tlie  rents,  issues,  and  profits 

of  the  said  estate  in  the  annual  sum  of  dollars ;  and 

the    said  estate   is  hereby    charged   with    the   payment   of 

the  same  on  the day  of of  each  and  every  year  of 

the  natural  life  of  the  said  J.  B.]'  * 

And  it  ap})earing  to  the  court  that  the  said  E.  F.  has 
elected  to  take  the  said  estate  at  its  appraised  value,  and 
has  paid  to  the  clerk  of  this  court  the  costs  of  this  case,  and 
to  the  other  parties  herein,  their  respective  proportions  of  its 
appraised  value,  the  said  estate  [subject  to  the  dower  charge 
of  the  said  J.  B.],'  is  hereby  adjudged  to  the  said  E.  F. ;  and 
the  sheriff  is  ordered  to  execute  and  deliver  a  deed  to  liini 
therefor. 

1  When  no  dower  has  been  assigned,  omit  the  parts  of  this  decree  in  brackets 
*  See  sees.  5771  and  5714. 


-5762.J  PARTITION.  241 

444.  (Sec.  5762.)  Decree  of  confirmation  and  distribution,  lohen 
the  -party  electing  to  take  the  premises  makes 
payment  to  sheriff. 

[Title.] 

Same  as  last  to  *,  and  continue  •] 

And  it  appearing  to  the  court  that  the  said  E.  F.  has 
elected  to  take  the  said  premises  at  their  appraised  valuer 
and  that  [by  agreement  of  all  parties  herein]^  the  terms 
of  payment  are  to  be  \state  terms,  if  other  than  cash.  If 
terms  are  to  be  cash,  use  next  decree,  No.  445],  and  the  court  find- 
ing that  the  costs  of  this  action,  including  a  counsel  fee  of 

$ ,  to  S.  W.  for  his  services  herein,-  amount  to  $ ; 

and  that  there  is  due  to  the  treasurer  of county,  as 

taxes  and  penalty  on  said  premises,  the  sum  of  $ ;  ^  it 

is  therefore  ordered  by  the  court  that  upon  pa3^ment  be- 
ing made  to  the  sheriff  by  the  said  E.  F.  of  his  propor- 
tion of  said  costs  and  taxes,  to  wit,  the  sum  of  S ,  and 

upon  his  paying  in  cash  and  notes,  secured  by  mortgage 
upon  the  premises,  according  to  the  terms  of  payment,  the 
proportion  of  the  appraised  value  due  to  the  other  parties, 
as  heretofore  found  by  the  court,  the  said  estate  [subject  to 
the  dower  charge  of  the  said  J.  B.,*]  be,  and  it  hereby  is,  ad- 
judged to  him,  and  the  sheriif  is  ordered  thereupon  to  make 
and  execute  to  him  a  conveyance  thereof. 

And  the  court  coming  now  to  distribute  ^  the  proceeds  of 
said  estate,  it  is  ordered  tliat  the  sheriff",  upon  receiving  the 
same,  as  above,  pay  : 

First,  to  the  treasurer  of  county, dollars,  being 

the  taxes  and  penalties  due  on  said  premises. 

Secondly,  to  the  clerk  of  this  court  the  costs  of  this  ac- 
tion, including  counsel  fee,  the  sum  of  8 . 

Thirdly,  to  the  plaintiff",  A.  B.,  in  cash  the  sum  of  S . 

and  also  [describe  irhat  notes];  and  to  the  said  G.  II.  in  easii 

the  sum  of  8 ,  and  also  [describe  ivhat  notes],  in  full  of 

their  respective  rights  herein. 

1  By  sec.  5703.  2  By  sec.  5778;  see  note  2,  page  ^oS. 

^  By  sec.  2854  ;  see  note  4,  page  155. 

*  If  there  is  no  dower,  omit  the  part  in  brackets.  *Soe  sec.  5'  57. 


242  JOURNAL    ENTRIES.  [SEC.  5762- 

445.  (Sec.  5762,  3.)     Decree   of   confirmation    and   distribution 

when  the  party  electing  to  take  the  prem- 
ises is  ordered  to  pay  all  cash. 

[Title.'] 

As  in  entry  No.  443  to  *,  and  continue:'] 

And  it  appearing  to  the  court  that  the  said  E,  F.  has  elected 
to  take  the  said  premises  at  their  appraised  value,  it  is  or- 
dered by  the  court,  on  good  cause  shown,  that  the  propor- 
tion thereof  due  to  the  other  parties  be  paid  in  cash,^  and 
that  upon  said  E,  F.  paying  the  same,  together  with  his 
proportion  of  the  costs  of  this  case,  including  counsel  fee  of 

$ ,  to  S.  AY.  for  his  services  herein,  and  his  proportion 

of  the  taxes  and  penalty  due  on  said  premises,"^  amount- 
ing in  all  to  $ ,  the  said  estate  [subject  to  the  dower 

charge  of  said  J.  B.]  ^  be,  and  it  hereby  is,  adjudged  to  him; 
and  the  sheriff  is  ordered  thereupon  to  make  and  execute  to 
him  a  conveyance  thereof. 

And  the  court  coming  now  to  distribute  the  proceeds  of 
said  estate,  it  is  ordered  that  the  sherilf.  upon  receiving  the 
same,  as  above,  pay  : 

First,  to  the  treasurer  of  county, dollars,  being 

the  taxes  and  penalty  due  on  said  premises.- 

Secondly,  to  the  clerk  of  this  court  the  costs  of  this  action, 
including  counsel  fee,  the  sum  of  $ . 

Thirdly,  to  the  plaintiff,  A.  B.,  the  sum  of dollars,  and 

to  the  defendant,  G.  II.,  the  sum  of dollars,  in  full  of 

their  respective  rights  herein. 

446.  (Sec.  5764.)     Decree  of  confirmation  and  order  for  sale, 

when  no  one  elects  to  take  the  premises. 

[Title.] 

As  in  No.  443  to  *.  and  continue:] 

And  thereupon  neither  of  said  parties  electing  to  take  the 
said  estate  at  its  appraised  value,  on  motion  of  the 
plaintifi',  it  is  ordered  that  said  estate  [subject  to  the   said 

1  By  sec.  5703. 

-  By  sec.  2854;  sec  note  4,  page  155. 

3  If  no  dower  has  been  assigned,  omit  the  part  in  brackets. 


.]  PARTITION.  243 

dower  charge  of  the  said  J.  B.]/  be  sold-  at  public  auction  (on 
the  premises),*  and  that  an  order  issue  therefor  to  the  sheriff 
of county. 

[And  on  motion  of  the ,  and  for  good  cause  shown  [or 

sa;/,  And  by  agreement  of  all  parties  hereto],  it  is  ordered 
that  the  sale  be  made  for  cash].  ^ 

Arid,  in  counties  requiring  it,  the  court  may  order,  by  see. 
5394  :]— 

And  on  motion  of  the  plaintiff,  and  for  good  cause  shown, 
advertisement  of  sale  in  a  German  newspaper  is  hereby  dis- 
pensed with. 

And  the  said  sheriff  is  ordered  to  return  his  proceedings  to 
this  court  without  unnecessary  delay. 

447.  (Sec.  5766.)     Sale  [subject  to  dower']  ^  confirmed,  and  order 
for  deed  and  distribution. 

On  motion  of  the  plaintiff,  and  upon  producing  the  return 
of  the  sheriff  of  his  proceedings  and  sale  under  the  former 
order  of  this  court,  and  tlic  court  being  satisfied  on  examina- 
tion tliat  the  same  have  l)ccii  Lad  in  all  respects  according  to 
law,  the  said  proceedings  and  sale  are  hereby  approved  and 
confirmed.  And  the  said  sheriff  is  ordered  by  deed  duly  ex- 
ecuted to  convey  said  premises  to  A.  P.,  the  purchaser  [sub- 
ject to  the  dower  charge  of  the  said  J.  B.]^ 

It  is  further  ordered  that  the  sheriff,  out  of  the  proceeds 
of  sale,  pay — 

First,  to  the  treasurer  of  county dollars,  beinor 

the  taxes  and  penalty  due  on  said  premises.* 

Secondly,  to  the  clerk  of  this  court  the  costs  of  this  action, 

1  If  no  dower  has  been  assigned,  omit  the  part  of  this  decree  in  brackets. 

2  Bohort  V.  Atkinson,  14  Ohio,  237.  Can  not  be  sold  until  all  parlies  have  de- 
clined to  take.  There  is  no  direct  authority  for  any  one  but  the  sheriff  to  sell 
in  partition  proceedings ;  but  as  this  chapter  is  a  part  of  the  code,  does  not  sec. 
4068  give  sufficient  authority  for  the  court  to  direct  a  master  commissioner  to 
.«en?     See  also  the  case  of  Dabney  v.  Manning,  3  Ohio,  321. 

'  May  be  so  ordered  by  sec.  5765. 
*  See  note  4,  p.  155. 


244  JOURNAL   ENTRIES.  [SEC.  5764- 

including  a  counsel  fee  of  $ to  S.  "W.,  for  his  services 

herein,  taxed  at  $ . 

Thirdly,  to  the  plaintiff,  A.  B.,  the  one-half  of  the  balance  of 

the  cash  payment,  to  wit,  the  sum  of  % ,  and  also  \^(iescrihe 

what  notes]  ;  to  the  said  G.  II.  the  one-eighth  part  of  the  bal- 
ance of  the  cash  payment,  to  wit,  the  sum  of  $ ,   and 

also  [describe  notes ;  and  so  cordinue  to  all  parties']. 

III.  Confirmation  and  sale  avhere  property   could   not   be 

DIVIDED  BY  METES  AND  BOUNDS,  AND  MONEY  VALUE  IS  GIVEN 
IN  LIEU  OF  DOWER 

448.  (Sec.  5764.)  Decree  of  confirmation  and  order  for  sale — 
when  no  one  elects  to  take  the  premises. 

{Title.] 

This  cause  came  on  for  hearing  upon  the  return  of  the 
sheriff  and  the  report  of  the  commissioners  heretofore  ap- 
pointed lierein,  and  on  the  motion  to  confirm  the  same.  And 
it  appearing  that  said  estate  can  not  be  divided  by  metes  and 
bounds  without  injury  to  the  value  thereof,  and  that  said  com- 
missioners have  made  and  returned  their  appraisement  thereof, 

free  from  the  dower  of  the  said  J.  B.,'  in  the  sum  of  | , 

the  court  find  the  said  return  and  proceedings  in  all  respects 
correct  and  in  conformity  to  law,  and  do  therefore  approve 
and  confirm  the  same. 

And  thereupon  neither  of  said  parties  electing  to  take  the 
said  estate  at  its  appraised  value,  and  the  said  J.  B. 
having  by  her  answer  waived  her  dower  by  metes  and  bounds, 
and  asked  that  in  lieu  thereof  its  value  be  paid  her  in  money ,^ 
on  motion  of  the  plaintift',  it  is  ordered  that  said  premises  be 
sold'^  at  public  auction  (on  the  premises),'*  free  of  the  dower  of 
the  said  J.  B.,-  and  that  an  order  issue  therefor  to  the  sheriff 
of county. 

[And  on  motion  of  the ,  and  for  good  cause  shown  [or 

say,  And  by  agreement  of  all  parties  hereto],  it  is  ordered  that 
the  sale  be  made  for  cash].^ 

^  As  provided  by  sec.  5719. 
^^Sec.  5710. 
3  See  note  2,  p.  243. 
^See  sec.  5705. 


-5707.]  PARTITION.  245 

And,  in  counties  requiring  it,  the  court  may  order,  by  sec. 
5394  :]— 

And  on  motion  of  the  plaintiff,  and  for  good  cause  shown, 
advertisement  of  sale  in  a  German  newspaper  is  hereby  dis- 
pensed with. 

And  the  said  sheriff  is  ordered  to  return  his  proceedings  to 
this  court  without  unnecessary  delay. 

451.  (Sec.  5764.)     Same — when  dower  or  life  estate  extends  only 

to  an  undivided  interest  in  'premises} 
[Title.'] 

Same  as  last  decree,  substituting  '■'■life  estate"  for  '■^  dower," 
where  proper. 

452.  (Sec.  5766.)     Sale,  free  of  dower  or  life  estate,  confirmed, 

and  order  for  deed  and,  distribution. 

{Title.'] 

On  motion  of  the  plaintiff,  and  upon  producing  the  return 
of  the  sheriff  of  his  proceedings  and  sale,  under  the  former 
order  of  this  court,  and  the  court  being  satisfied  on  examina- 
tion that  the  same  have  been  had  in  all  respects  according  to 
law,  the  said  proceedings  and  sale  are  hereby  approved  and 
confirmed.  And  tlie  said  slieriff  is  ordered  by  deed  duly  ex- 
ecuted to  convey  said  premises  to  the  purchaser,  A.  P.,  free 
of  the  dower  ^  [or,  life  estate]''  of  the  said . 

And  the  said having  by  her  answer  elected  to  receive 

in  lieu  of  her  dower  [or,  life  estate],  its  value  in  money,  tlie 

court  find  the  just  and  reasonable  value  thereof  to  be 

dollars.-^ 

1  By  sec.  5770.  This  section  also  provides  that,  in  case  an  undivided  interest 
is  subject  to  dower  or  a  life  estate,  the  commissioners  may,  in  case  an  appraise- 
riH'ut  of  the  estate  is  to  be  returned,  assign  or  set  off  the  same.  But  in  that 
ca-e  it  would,  by  section  5714,  be  assigned  as  of  '-a  third  part  of  the  rents,  is- 
siir-.  aii<l  profits,"  of  such  undivided  interest,  and  selling  the  whole  estate  sub- 
jiM-t  t>)  tluit  incumbrance  would  appear  to  he  detrimental  to  the  interests  of  all 
jtarties.  It  is  probable,  for  that  reason,  that  the  appraisement  and  sale  will  al- 
ways be  free  from  such  interest  as  is  provided  in  this  decree. 

-See  sec.  5719. 

SGec.  5770. 


246  JOURNAL   ENTRIES.  [SEC.  5768- 

It  is  further  ordered  that  out  of  the  proceeds  of  said  sale 
the  sheriff  pay — 

First.  To  the  treasurer  of county, dollars,  being 

the  taxes  and  penalty  due  on  said  premises.' 

Secondly.  To  the  clerk  of  this  court  the  costs  of  this  action, 

including  a  counsel  fee  of  $ to  S.  and  W.  for  their  services 

herein,  taxed  at  % ." 

Thirdly.  To  the  said ,  the  said  sum  of  $ ,  as  and 

for  her  full  dower  [or,  life]  interest  in  the  said  premises. 

Fourthly.  And  of  the  residue  of  the  proceeds  of  said  sale^ 
to  the  plaintiif,  A.  B.,  one-fourth  of  the  cash  proceeds,  to  wit, 

the  sum  of  % ,  and  also  [describe  what  notes'].     To  the  said 

defendant,  C.  D.,  one-fourth  of  the  cash  proceeds,  to  wit,  the 

sum  of  $ ,  and  also  [describe  what  notes].     To  the  said  E. 

F.,  and  G.  II.,  each  one-eighth  of  the  cash  proceeds,  to  wit, 
the  sum  of  $ ,  and  also  [describe  7iotcs]. 

Other  provisions — 

453.  (Sec.  5768.)     Order  for  revaluation. 
[Title.] 

It  appearing  to  the  court  that  the  property  described  in  the 

petition  herein  has  been times  otiered  for  sale,  and  not 

sold  for  want  of  bidders,  now,  on  motion  of  the  ,  it  is 

ordered  that  a  revaluation  of  said  property  be  Tuade  by  L.M., 
IT.  R.,  and  S.  T.,  three  judicious,  disinterested  freeholders  of 
the  county,  whom  the  court  hereby  appoint  for  that  purpose, 
and  that  an  order  issue  to  the  sheriff  of  said  county,  com- 
manding him  so  to  re-appraise  said  property,  and  to  sell  the 
same,  as  heretofore  ordered,  at  not  less  than  two-thirds  of 
the  revaluation. 

454.  (Sec.  5768.)     Order  to  sell  loithout  revaluation. 
[Title.] 

It  appearing  to  the  court  that  the  property  described  in  the 
petition  herein  has  been times  offered  for  sale,  and  not 

^  See  note  4,  p.  155. 
2  See  note  3,  p.  239. 


-5778.]  TO    QUIET    TITLE    AND    RECOVER    POSSESSION.  247 

sold  for  want  of  bidders,  now,  on  motion,  and  it  being  deemed 
expedient  for  the  interest  of  all  parties  concerned,  it  is  or- 
dered that  said  property  may  be  sold  for  not  less  than 

dollars  ;  and  that  an  order  of  sale  issue  to  the  sheriff  accord- 
ingly. 

455.  (Sec.  5769.)     Order  for  succeeding  sheriff  to  make  deed. 

[Title.'] 

It  appearing  to  the  court  that  since  the  sale  of  the  lands 
herein,  the  term  of  office  of  T.  S.,  the  then  sheriff,  has  ex- 
pired, and  the  court  being  satisfied  that  such  sale  was  regu- 
larly made,  and  tliat  the  ])urehase-money  has  been  fully  paid 
[or,  secured],  it  is,  on  motion,  ordered  that  J.  II.,  the  present 
sheriff,  execute  and  deliver  to  the  purchaser,  O.  T.,  a  deed 
for  the  lands  so  sold. 

A  similar  entry  may  be  made  iu  case  of  election  to  take. 


CHAPTER  X. 

REAL  ACTIONS. 

SOBDIVISION    I.  To    QUIET    TITLE    AXD    RECOVER    POSSESSIOX. 

II.  OcCrPYIXG   CI.AIM.\NT.S. 

III.  To    COMPLETE    REAL    CONTRACTS. 

IV.  To    SELL    ENTAILED    AXD    OTHER    ESTATES. 

SUBDIVISION  I. — To  quiet  title  and  recover  possession. 

To    DETERMINE    CLAIMS    ADVERSE    TO    OXE    IN    POSSESSIOX 

456,  (Sec.  5779.)     Decree  quieting  title  and  possession  in  plaintiti'. 

Recoupment  by  vendee  in  action  for  recovery  op   purchase-money — 

4')7.  (Sec.  5780.)     Decree  finding  lien  of  third  party,  and  for  recoupment. 
458.  (Sec.  5780.)     Finding  of  adverse  estate,  and  surrender  of  premises 
ordered. 


248  JOURNAL    ENTRIES.  [SEC.  5779- 

459.  (Sec.  5780.)     Finding  of  adverse  estate,  and  order  for  payment  of 

balance  of  purchase-money  on  bond  being  given. 

Recovery  of  real  property — 

460.  (Sec.  5781.)     Decree  for  recovery. 

461.  Decree  quieting  title  in  defendant,  in  an  action  for  recovery  of  real 

estate. 

462.  (Sec.  5781.)     Judgment  on  verdict  for  plaintiff. 

463.  (Sec.  5781.)      Motion   for   new    trial    overruled   and  judgment   for 

plaintiff. 

464.  (Sec.  5784.)     Decree  for  damages  when  right  of  recovery  terminates 

during  action. 

To    DETERMINE    CLAIMS    ADVERSE    TO    ONE    IN    POSSESSION 

An  action  under  sec.  557  (5779)  of  the  code,  to  quiet  title,  can  only 
he  brought  by  a  person  in  actual  possession.'  The  decree  should  there- 
fore find  the  possession  of  the  plaintiff. 

The  remedy  given  by  this  section  is  a  continuation  of  that  given  by 
the  14th  section  of  the  chancery  practice  act  of  1831.-  That  act,  how- 
every,  differs  from  this  in  providing  that  "  any  person  having  the  legal 
title  and  possession  of  lands,  may  file  a  petition,"  etc.,  and  under  that 
statute  the  decisions  of  the  supreme  court  held  that  a  legal  title  must 
be  shown  to  support  the  case.  But,  query,  does  the  present  statute  go 
further?  The  supreme  court  of  Kansas,  in  Eaton  v.  Giles,  held  that 
it  does.  They  say:  "Section  569,  Civil  Code,  '59  [same  as  section 
5779,  Ohio  code],  was  not  intended  to  give  the  right  to  bring  an  action 
to  quiet  title — this  right  existed  previously — but  it  goes  further  than 
the  remedies  in  the  courts  of  chancery,  which  might  be  invoked  by  the 
holders  of  a  legal  title ;  it  extends  the  remedy  to  any  person  '  in  pos- 
session by  himself  or  tenant,'  to  quiet  h'lii  po-^i^esdon  as  against  any  im- 
perfect or  insufficient  claim  of  title." 

In  an  action  under  section  557  (5779)  of  the  code,  neither  party  is 
entitled  to  demand  a  jury.     The  issue  is  triable  by  the  court. - 

456.  (Sec.  5779.)     Decree  quieting  title  and  possession  in  plaint- 

if- 

[Title.] 

If  decree  is  rendered  after  trial,  use  Finding  /.,  p.  99;  if  by 
default,  use  Finding  IV.,  p.  100,  and  continue:] — 

The  court  further  lind  that  at  the  time  of  bringing  this  ac- 

1  Harvey  v.  .Jones,  1  Disney.  Go;   Eaton  r.  Giles,  5  Kan.  24. 
^Ellithorpe  c.  Bucjc  et  al..  17  Ohio  St.  72.  76. 


-5780.]  TO    QUIET    TITLE    AND    RECOVER    POSSESSION.  249 

tioii  tlic  said  plaintiff  was  in  possession  of  the  real  property 
described  in  the  petition,  and  that  he  had  the  legal  estate  in, 
and  was  entitled  to  the  possession  of,  the  same ;  that  neither 
the  defendants,  nor  any  one  of  them,  have  any  estate  in,  or 
arc  entitled  to  the  possession  of,  said  real  estate  or  any  part 
thereof,  and  that  the  plaintiff  ought  to  have  his  title  and 
possession  (piieted  as  against  each  and  every  one  of  said  de- 
fendants, as  prayed  foi-  in  his  petition. 

It  is  therefore  ordered,  adjudged  and  decreed,  that  the  title 
and  possession  of  the  said  A.  B.  to  all  and  singular  the  prem- 
ises in  the  petition  described,  to  wit  [(/.escribe],  be,  and  the 
same  hereby  arc,  quieted  as  against  the  defendants,  and  each 
and  every  one  of  them,  and  all  persons  claiming  under  them, 
or  ail}'  of  them:  and  they  are  hereby  forever  enjoined  from 
setting  u})  any  claim  to  said  ])remises,  or  any  ])ai"t  thereof, 
adverse  to  the  title  and  possession  of  said  A.  B.,  his  heirs  or 
assigns,  thereto. 

[Add  order  as  to  costs.] 

Recoupment  by  vendee  in  action  for  recovery  of  purchase- 
money — 
457.  (Sec.  5780.)     Decree  finding  lien  of  third  j)arty,  and  for 
recoupment. 

[Title.] 

In  the  decree  of  foreclosure  of  a  mortgage,  or  for  enforcement 
of  the  vendor's  lien,  or  judgment  for  money,  as  the  case  may  be, 
insert  at  the  -proijer  places  the  following :] — 

But  the  court  also  iind  on  the  answer  and  counterclaim  of 
paid  defendant,  and  the  evidence,  that  there  has  been  a  breach 
of  the  covenants  of  title  given  by  plaintiff  to  defendant,  as 
set  np  in  said  answer  and  counterclaim,  in  this,  to  wit,  that 
at  the  time  of  the  execution  of  the  deed  J.  M.  F.  held  and 
still  holds  a  mortgage  lien  [or  other  incumbrance]  upon  said 
premises,  the  present  value  of  which   lien  the  court  find   is 

§ ;  and  that  said  defendant  is  entitled  to  recoup)  the  same 

against  the  plaintiff's  claim  as  hereinbefore  found,  leaving 
due  to  him  the  sum  of dollars. 


250  JOURNAL    ENTRIES.  [SEC.  5780- 

458.  (Sec.  5780.)     Finding  of  adverse  estate,  and  surrender  of 

premises  ordered. 

[Title.'] 

Finding  111.,  jp.  99,  to  *,  and  continue :] — that  the  allega- 
tions of  the  answer  and  counterclaim  of  the  defendant  are 
true;  that  there  has  heen  a  breach  of  the  covenants  of  title 
given  by  the  plaintiff  to  defendant  in  the  real  estate  iii  the 
petition  described,  in  this,  to  wit,  that  at  the  time  of  the  ex- 
ecution of  the  deed  J.  M.  F.  held  and  still  holds  an  estate  in 
reversion  [or  otherwise;  describe']  in  said  premises. 

It  is  therefore  considered  that  the  claim  of  the  plaintift'be 
dismissed ;  and  the  defendant  assenting,  it  is  ordered  and 
decreed  that  said  defendant  surrender  the  possession  of  said 
premises,  and  reconvey  the  title  thereof  by  deed  to  said  A 
B.,  upon  the  repayment  by  the  said  plaintiff  of  the  part  of 

the  purchase-money  paid  thereon,  to  wit,  S ,  with  inte'rest 

from  the day  of ,  18 — . 

It  is   further  ordered  that  the pay  the  costs   of  this 

action. 

459.  (Sec.  5780.)     Finding  of  adverse  estate,  and  order  for  pay- 

ment of  bcdance  of  purchase-money,  on  bond 
being  given. 

[Title.] 

After  finding  amount  due  plaintiff  in  decree  of  foreclosure, 
or  on  vendor's  lien,  or  in  judgment,  as  the  case  may  be,  cordinue:'] 

The  court  further  find,  on  the  answer  and  counterclaim  of 
the  defendant  and  the  evidence,  that  there  has  been 
a  breach  of  the  covenants  of  title  given  by  the  plaintiff  ta 
defendant  in  the  premises  hereinbefore  mentioned  in  this,  to 
wit,  that  at  the  time  of  the  execution  of  the  deed  J.  M.  F 
held  and  still  holds  an  estate  in  reversion  [or  otherwise ;  de- 
scribe] in  the  same. 

It  is  therefore  ordered  and  decreed  that  upon  said  plaintiff 
giving  bond  with  two  or  more  sureties  to  the  satisfaction  of 
the  court,  conditioned  for  the  repayment  of  the  said  sum  of 

S ,  if  said  defendant  or  his  privies  be  evicted  from  said 

premises  by  reason  of  the  said  defect  in  the  said  title,  the 
said  defendant  pay  the  balance  due  to  plaintiff  as  above 
found  due,  and  in  default  of  such  payment  within days 


5781.]  TO    QUIET    TITLE    AND    RECOVER    POSSESSION.  251 

after  the  tender  of  such  bond,  the  defendant's  equity  of  re- 
demption be  foreclosed,  and  said  premises  be  sold,  and  that 

an  order  of  sale  issue  therefor  to  the  sheriff  of county 

directing  him  to  sell  said  premises  as  upon  execution,  and 
report  his  proceedings  to  this  court  for  further  order. 

Recovery  of  real  property — 

Section  5781  is  for  the  recovery  of  real  property  by  one  out  of  pos- 
session. The  decree  in  such  case  must  find  in  the  plaintiff  a  legal  es- 
tate  and  a  right  of  possession,  both  being  requisite  to  sustain  the  aC' 
tion.     Tlie  issue  may  be  tried  by  a  jury.' 

Section  5785  provides  that  the  parties  in  an  action  for  the  recovery 
of  real  property  may  avail  themselves,  if  entitled  thereto,  of  the  re- 
lief of  the  statutes  in  force  for  the  relief  of  occupying  claimants  of 
lands. 

460.  (Sec.  5781  et  seq.)     Decree  for  recovery  of  real  estate. 

[Title.] 

If  given  after  trial,  use  Finding  HI.,  page  90 ;  if  by  default. 
Finding  IV.,  page  100,  and  continue:] 

And  tlie  court  further  lind  that  at  the  time  the  petition 
herein  was  Hied  the  plaintiff  had  and  still  has  a  legal  estate 
in,  and  was  and  is  still  entitled  to  the  immediate  possession 
of,  the  real  property  described  in  the  petition,  and  that  the 
defendant  has  unlawfully  kept  him  out  of  the  same  as  al- 
leged in  said  petition  ;  and  the  court  assess  the  damages  of  the 
plaintiff*  by  reason  of  the  premises  at dollars. 

It  is  therefore  adjudged  and  decreed  by  the  court  that  the 
said  A.  B.  recover  from  the  said  C.  I),  the  title  and  posses- 
sion [or,  possession]  of  the  real  property  described  in  the 
petition,  together  with  the  said  sum  of dollars,  his  dam- 
ages so  assessed,  and  also  his  costs  herein  expended;'  and 
for  said  possession,  damages,  and  costs  execution  is  awarded.^ 

iSec.  5130.     See  Ellithorpe  v.  Buck,  17  Ohio  St.  72. 

2  If  the  title  is  changed,  put  clause  in  at  this  place  by  section  4138.  as  follows: 
And  the  clerk  is  directed  tu  have  so  much  of  this  decree  recorded  in  the  office 
of  the  recorder  of  this  county  as  will  show  such  change  of  title. 

3  See  sec.  5373  for  extent  of  execution. 


252  JOURNAL    ENTRIES.  [SEC.  5781- 

If  the  defendant  desires  to  avail  himself  of  the  benefit  of  the  occu 
pying  claimant's  law,  use  addendum  to  decree,  page  255,  or  Entry  No. 
465. 

461.  Decree  quieting  title  in  defendant,  in  an  action  for  the  recov- 
ery of  real  estate. 

[Title.] 

If  given  after  trial,  use  Finding  III.,  page  99;  if  by  default, 
use  finding  IV,,  page  100,  and  continue:'] 

And  the  court  further  lind  that  neither  the  plaintift",  nor  any 
one  of  the  defendants  other  than  C.  J).,  has  any  estate  in,  or 
is  entitled  to  the  possession  of  the  real  property  in  the  peti- 
tion described,  or  any  part  thereof;  hut  that  said  defendant, 
C.  D,,  is  seized  in  fee  simple,  and  is  rightfully  in  possession 
of  the  several  lots  of  land  described  in  the  petition.  [Or  add 
special  finding  thus:] — as  devisee  of  said  A.  S.,  deceased, 
whom  the  court  find  to  have  been  the  lawful  owner  of  the 
same  in  fee  simple  at  the  time  of  his  decease.]  The  court 
further  find  that  the  said  defendant,  C.  1).,  is  entitled  to  the 
equitable  relief  prayed  for  in  his  answer  and  cross-petition, 
and  to  have  liis  title  and  possession  to  said  premises  quieted. 

It  is  therefore  ordered,  adjudged,  and  decreed  that  the  title 
and  possession  of  said  C.  D.  to  all  and  singular  the  premises 
in  the  petition  described,  to  wit  [describe],  be  quieted  as 
against  the  plaintifi",  and  as  against  each  and  every  one  of  his 
co-defendants,  and  all  persons  claiming  under  them,  or  any 
of  them.  And  that  said  parties,  and  each  of  them,  and  all 
persons  claiming  under  them,  be,  and  they  are  hereby,  en- 
joined from  setting  up  any  claim  to  said  premises,  or  any 
part  thereof,  adverse  to  the  title  or  possession  of  said  C.  D. 
thereto  ;  or  in  any  manner  interfering  with  his  use  and  en- 
joyment of  the  same. 

It  is  further  ordered  that  the  costs  of  this  suit  be  paid  by 
the  plaintifi"  and  the  co-defendants  of  said  C.  D.,  in  equal 
proportions,  and  execution  is  awarded  [or  other  order  as  to 
costs]. 

If  the  case  for  the  recovery  of  real  property  be  tried  by  a  jury,  use 
the  usual  forms,  as  given  on  p.  55  et  >feq.,  and  let  the  verdict  be  like  the 


-5783.]  TO    QUIET    TITLE    AND    RECOVER    POSSESSION.  258 

finding  of  the  court  in  one  of  tlie  above  decrees.     Judgment  on  the 
verdict  for  the  plaintiff  may  be  as  follows  : 

462.  (Sec.  5781.)     Judgment  on  verdict  for  plaintiff". 
[Title.] 

The  jury  in  this  action  having,  at  a  former  day  of  this 
term,  rendered  a  verdict  finding  on  the  issue  for  the  plaint- 
iff, and  assessed  his  damages  at  $ ,  and  no  motion  for  a 

new  trial  having  heen  made  ; 

It  is  therefore  adjudged  and  decreed  by  the  court  that,  in 
accordance  with  said  verdict,  the  said  A.  B.  recover  from  the 
said  C.  D.  the  title  and  possession  [or,  possession]  of  the  real 
property  described  in   the  petition,  and  also  the  said  sum 

of  dollars,  his  said   damages,  together  with  his   costs 

herein  expended.' 

For  addendum  in  case  defendant  desires  to  avail  himself  of  the  bene- 
fits of  the  occupying  claimant  law,  see  p.  255. 

If  a  motion  for  a  new  trial  is  made  and  overruled,  enter  as  follows : 

463.  (Sec.  5781.)     3Iotionfor  new  trial  overruled,  and  jwlgment 

for  plaintiff. 
[Title.-] 

This  cause  came  on  for  hearing,  on  the  motion  of  the  de- 
fendant to  set  aside  the  verdict,  and  for  a   new  trial  herein 
and  the    court,  on    consideration    thereof,   do    overrule   the 
same. 

It  is  therefore  considered  by  the  court  that  the  said  A.  B. 
recover  from  the  said  C.  D.  the  title  and  possession  [or,  the 
possession]  of  the  real  property  described  in  the  petition,  to 
wit  [describe],  according  to  the  verdict  heretofore  rendered 

herein,  and  also  the  said  sum  of  -S ,  damages  as  assessed 

by  said  verdict,  together  with  his  costs  herein  expended.' 

For  addendum  in  case  defendant  desires  to  avail  himself  of  the  bene- 
fit of  the  occupying  claimants  law,  see  p.  255. 

The  judgment  on  the  verdict  for  the  defendant  may  simply  be,  that 
he  go  hence  without  day  and  recover  from  the  plaiutifl'  his  costs  herein 
expended.  But  a  judgment  quieting  title  in  him,  as  in  Entry  No.  461, 
is  perhaps  better. 

1  See  note  2  to  Entry  4G0,  p.  251. 

17 


254  JOURNAL    ENTRIES.  [SEC.  5784- 

464.  (Sec.  5784.)     Decree  for  damages  ivhen  right  of  recovery 

terminates  during  action. 
[  Title.] 

If  the  decree  is  rendered  after  trial,  use  Finding  HI.,  p.  99  to 
*;  if  by  default,  Finding  IV.,  p.  100,  to  *,  and  continue:'] — that 
at  the  time  this  action  began,  the  plaintiff  had  the  legal 
right  to,  and  was  entitled  to  the  imnjediate  possession  of,  the 
real  property  described  in  his  petition,  but  that  his  said  title 

expired  on  the day  of ,  18 — .     And  the  court  find 

that  the  said  defendant  unlawfully  kept  the  plaintiff  out  of 
his  said  possession  ;  and  do  assess  the  damages  of  the  plaint- 
iff by  reason  thereof  at  | . 

It  is  therefore  considered  by  the  court  that  the  said  plaint- 
iff recover  from  the  said  defendant  the  said  sum  of dol- 
lars damages  as  aforesaid,  and  his  costs  herein  expended; 
but  that  as  to  possession  of  said  premises,  the  defendant  go 
hence  without  day. 

If  the  case  Avas  tried  by  a  jury,  use  usual  forms,  making  verdict  in 
the  form  of  the  finding  in  above  entry,  and  entering  the  judgment  on 
the  verdict  for  damages  and  costs.  See  forms  of  Entries  No.  462  and 
463,  above. 

SUBDIVISION  II.— Occupying  claimant. 

465.  (Sec.  5788.)     Entry  of  application,  etc. 

466.  (Sec.  5791.)     Setting  aside  the  assessment. 

Where  the  waste  and  rents  exceed  the  value  of  the  improvements. 

467.  (Sec.  5792.)     Judgment  for  balance,  in  favor  of  plaintiff  in  eject- 

ment. 

Where  the  value  of  the  improvements  exceeds  the  waste  and  rents. 

468.  (Sec.  5794)     Judgment  when  plaintiff  elects  to  take  the  land. 

469.  (Sec.  5795.)     Judgment  when  plaintiff  elects  to  take  the  value  of  the 

real  estate. 

Under  the  occupying  claimant  law,  as  the  commissioners  may  be  ap- 
pointed upon  the  application  of  either  party,  it  must  be  considered  a 
separate  proceeding  from  the  action  of  ejectment,  in  which  the  party 
prevailing  is  entitled  to  costs.  ^ 

1  Martin's  case,  1  Ohio,  156.     See  4  Ohio,  469,  494. 


-5790.]  OCCUPYING   CLAIMANT.  255 

Upon  the  rendition  of  the  judgment  of  recovery  of  real  estate 
against  the  occupying  claimant,  the  court,  at  the  request  of  either 
party,  will  cause  a  journal  entry  to  be  made  of  the  application,  under 
the  act  for  the  relief  of  occupying  claimants  of  land.^  This  journal 
entry  is  the  first  step  in  the  proceedings  to  obtain  the  relief  under  this 
law,  and  the  proceedings  being  deemed  separate  from  the  action  of 
ejectment,  the  journal  entry  should  show  by  whom  the  application  is 
made. 

465.  (Sec.  5788;  87  v.  2^37.)     Entry  of  application,  etc. 

\_Title.'\ 

This  day  came  tlie  said ,  and  made  application  for  the 

valuation  of  improvements  and  assessment  of  damages  under 
the  statute  for  the  relief  of  occupying  claimants,  upon  the 
lands,  etc.  [set  forth  iv/uit  lands].  And  the  court  having  con- 
sidered said  application,  and  being  of  opinion  that  the  said 
is  entitled  to  relief  in  tliat  behalf,  it  is  ordered  that  fur- 
ther proceedings  be  allowed  in  the  premises,  agreeably  to  the 
j)ro visions  of  said  statute. 

Or  the  journal  entry  on  the  application  may  be  added  to  the  judg- 
ment of  recovery,  as  follows  : 

Addendum  : 

And  thereupon  the  said ,  by  his  attorney,  made  appli- 
cation to  the  court  for  the  valuation  of  improvements  and 
assessment  of  damages  under  the  statute  for  the  relief  of  oc- 
cupying claimants;  and  the  court  having  considered  the 
same,  and  being  of  opinion  that  he  is  entitled  thereto,  it  is 
ordered  that  further  proceedings  be  allowed  in  the  premises, 
agreeably  to  the  provisions  of  said  statute. 

Further  proceedings  will  be  as  in  other  civil  cases.^ 
If  either  party  thinks  himself  aggrieved  by  the  assessment  or  valua- 
tion, the  court  may,  upon  motion  and  good  cause  shown,  set  aside  the 
assessment,  etc. 

'Sec.  5788,  amended  87  v.  237. 


256  JOURNAL    ENTRIES.  [SEC.  5791- 

466.  (Sec.  5791 ;  87  v.  238.)     Order  setting  aside  the  assessment. 
{Title:] 

This  cause  coming  on  to  be  heard,  upon  the  motion  of  the 

said to  set  aside  tlie  assessment  of  the  jury  herein  ;  and 

the  court  having  fully  considered  the  same,  for  good  cause 
shown,  order  that  said  assessment,  and  the  proceedings  of 
the  jury  and  sheriff  in  the  premises,  be,  and  the  same  are, 
hereby  set  aside.  And  the  court  do  further  order  that  an- 
other valuation  of  improvements  and  assessment  of  damages 
oe  had  in  the  premises,  agreeably  to  the  provisions  of  the  act 
for  the  relief  of  occupying  claimants,  and  that  the  same  be 
returned  to  the  next  term  of  this  court ;  to  which  time  this 
cause  is  continued. 

Where  the  waste  and  rents  exceed  the  value  of  the  im- 
provements. 

467.  (Sec.  5792.)     Judgment  for  balance,  in  favor  of  'plaintiff 

in  ejectment. 

[Title.'] 

This  day  came  the  said  parties,  by  their  attorneys,  and  the 
jury  herein  appointed  to  assess  damages  under  the  statute 
for  the  relief  of  occupying  claimants  having  assessed  the 
value  of  the  lasting  and  valuable  improvements  made  on  the 

real  estate  hereinbefore  described  at  ^ ,  and  the  damages 

which  the  land  has  sustained  by  waste  at  S ,  and  the  net 

annual  value  of  the  rents  and  profits  of  the  land  received  by 
said  defendant  since  receiving  notice  of  plaintiff's  title  by 

service  of  summons  on   him,  at  3 ,  leaving  due  to   the 

said  *  A.  B.'  the  sum  of  $ . 

It  is  therefore  considered  by  the  court  that  the  said  A.  B. 

recover  of  the  said  C.  D.'  the   said  sum  of dollars   and 

his  costs  herein  expended ;  and  execution  is  awarded  there- 
for. 

"Where  the  value  of  the  improvements  exceeds  the  waste 
and  rents. 
When  the  jury  fiud  a  balance  in  favor  of  the  occupant,  he  is  en- 

1  The  successful  claimant.  '  The  occupying  claimant. 


-5796.]  OCCUPYING    CLAIMANT.  257 

titled  to  a  judgment  for  costs,  but  not  for  said  balance.  As  to  the 
balance  found  by  the  jury,  the  plaintiff  must  pay  it  before  he  can  have 
a  writ  of  possession.^ 

468.  (Sec.  5794.)  Judgment  when  successful  claimant  elects  to 
take  the  land. 

[Title.'] 

As  in  No.  5G7  to  *,  and  continue:'] — C.  D.^  the  sum  of  $ ^'J 

it  is  considered  by  the  court  that  the  said  C.  D.  recover  from 
the  said  A.  B.  his  costs  in  this  behalf  expended,  taxed  at 


And  the  said  A.  B.''  now  here  electing  to  take  the  said 

land,  it  is  ordered  that  if  within days  from  this  date  he 

shall  2-)ay  to  the  said  C.  D.  the  said  sum  of  dollars  so 

found  by  said  jury,  and  the  costs  above  found,  a  writ  issue  to 

the  sherifi'  of county,  commanding  him  to  put  the  said 

plaintiff  in  possession  of  the  said  premises,  according  to  the 
former  decree  of  this  court. 

469.  (Sec.  5795.)     Jiidf/meiit  when  successful  claimant  elects  to 
take  the  value  of  the  real  estate,  without  im- 
provements. 
[Tdlc.] 

As  in  No.  467  to  *,  and  continue:] — C.  D.-  the  sum  of  S , 

it  is  considered  by  the  court  that  the  said  C.  D.  recover  from 
the  said  A.  B.  his  costs  in  this  behalf  expended,  taxed  at 


And  the  said  A.  B.^  now  here  electing  to  take  the 
value  of  said  land  without  the  improvements,  as  assessed  by 
the  said  jury  at  the  sum  of  § ,  and  to  give  his  deed  there- 
for, the  court  allow  time  until  the day  of ,  to  the 

said  C.  D.,  to  make  payment  of  the  said  sum  of  $ ,  above 

found,  and  also  to  the  said  A.  B.  to  deliver  to  the  said  C.  J). 
a  good  warranty  deed  for  the  land  aforesaid.  And  upon  de- 
fault of  payment  of  the  said  C.  D.  within  the  time  so  lim- 


'  Beardsley  r.  Chapman,  1  Oliio  St.  119. 
'  The  occupying  claimant. 
'The  successful  claimant. 


258  JOURNAL   ENTRIES.  [SEC.  5797-. 

ited,  a  writ  of  possession  shall  tlien  be  allowed  to  issue  in 
favor  of  the  said  A.  B. 

It  is  further  ordered  that  the  said  recover  from  the 

said  his  costs  in  this   proceeding  expended,  taxed  at 


SUBDIYISION  III. — To  complete  real  contracts. 

470.  (Sec.  5799.)     Judgment  authorizing  survivor  to  complete  contract. 

471.  (Sec.  5801.)     Judgment  authorizing   executor   or   administrator  to 

complete  contract. 

472.  (Sec.  5802.)     Judgment  to  compel  conveyance  to  heirs  of  i)erson  de-" 

ceased. 

470.  (Sec.  5799.)     Judgment   authorizing   survivor  to  complete 

contract  for  sale. 

[Title.] 

Use  Finding  III..,  i^o^ge  99 ;  or  if  hy  default,  use  Finding 
IV.,  page  100,  and  continue ;] 

The  court  further  find  that  said  G.  L.  on  the day  of 

,  A.  D.  18 — ,  being  then  in   full  life,   together  with  the 

plaintiff  herein,  became  bound  in  writing  to  said  R.  ^I.  for 
the  sale  of  the  premises  in  the  petition  described,  and 
that  the  said  contract  has  been  fully  performed  by  the  said 
R.  M. 

It  is  therefore  ordered  that  the  plaintiff,  A.  B.,  the  sur- 
vivor of  said  parties  contracting  to  convey,  be,  and  he  hereby 
is,  authorized  and  empowered  to  convey  to  the  said  R.  M.  by 
deed  in  fee  simple  the  lands  so  contracted  for,  according  to 
the  statute  in  such  cases  made  and  provided,  with  the  same 
effect  as  if  made  by  both  of  said  contracting  parties. 

And  it  is  ordered  that  the pay  the  costs  herein. 

471.  (Sec.  5801.)     Judgment  authorizing  executor  or  adminis- 

trator to  complete  contract. 
[TUle.] 

Finding  III.,  page  99;  or  if  by  default.  Finding  /F.,  page 
100,  and  continue:'] 

The    court    further   find    that   L.    M.    did    on    the    


-5802.]         TO  COMPLETE  HEAL  CONTRACTS.  259 

day   of  ,   A.   I).   18 — ,   being  then    in  full    life,   enter   in 

ji  written  contract  with  C.  F.  for  the  sale  and  conveyance  of 
})reinises  described  in  the  petition  ;  and  that  since  that  time, 
and  before  the  execution  of  said  contract,  the  said  L.  M.  has 
died,  and  that  A.  B.,  the  plaintiff  herein,  has  been  duly  ap- 
pointed and  qualified  as  his  executor  \_or,  administrator]. 

The  court  further  find  \_Here  make  fncling  of  atiy  payments 
oil,  or  other  part  performance  of,  contract'],  and  that  there  still 
remains  due  on  said  contract  from  said  C.  F.  the  sum  of 
$ ,  and  that  the  said  C.  F.  is  ready  and  willing  to  com- 
plete said  contract. 

It  is  therefore  ordered  and  decreed  that  the  said  A.  B.,  ex- 
ecutor as  aforesaid,  make  and  execute  on  behalf  of  the  lieirs 
of  the  said  L.  M.  to  the  said  C.  F.  a  good  and  sufticiont  deed 
in  fee  simple  for  the  ]>i-eniiscs  in   the  petition  described,  and 

upon  payment  of  the  said  sum  of  .^ deliver  the  same  to 

the  said  C.  F. 

And  it  is  ordered  that  the  said pay  the  costs  of  these 

proceedings. 

472.  (Sec.  5802.)     Ju(/r/ment  to  compel  conveyance  to  heirs  of 
person  deceased. 
[Title.-] 

Finding  III.,  page  00;  or  if  by  default.  Finding  IV.,  page 
100.  and  continue:] 

The  court  further  find  that  the  defendant,  C.  D.,  did  on 

the day  of  ,  a.  d.  18 — ,  enter  into  a  written  contract 

with  L.  M.,  then  in  full  life,  for  the  sale  and  conveyance  to 
liim  of  the  })remises  described  in  the  petition,  and  that  since 
that  time,  and  before  the  completion  of  said  contract,  the 
said  L.  M.  has  died ;  and  that  the  plaintitis  herein  are  the 
heirs-at-law  [or,  devisees]  of  the  said  L,  M.,  and  as  such,  are 
entitled  to  the  specific  execution  of  the  said  contract. 

It  is  therefore  ordered  and  decreed  that  upon  full  payment 
being  made  by  the  said  plaintifts  [or  state  specif  rally   what 

plaintiffs  are  to  do]  the  said  C.  D.  do,  within days  from 

the  date  of  this  decree,  convey  the  premises  in  the  petition 
described  to  the  said  plaintiffs  by  good  and  suflacient  deed  in 


260  JOURNAL   ENTRIES.  [SEC.  5803- 

fee  simple  ;  and  that  in  default  tliereof  this  decree  have  the 
same  operation  and  effect  as  said  deed.^ 
\_Add  order  as  to  costs.'] 

SUBDIVISION  IV. — To  sell  entailed  and  other  estates. 

473.  (Sec.  5805.)     Decree  authorizing  sale  of  entailed  estates. 

474.  (Sec.  5807.)     Decree  of  confirmation  ;    order  for  deed   and   invest- 

ment. 

475.  Bonds  of  trustees  approved,  etc. 

476.  (Sec.  5812.)     Decree  for  sale  of  property  given  for  a  religious  use. 

477.  Decree  of  confirmation, order  for  deed  and  distribution. 

These  sales  may  be  made  in  the  manner  tliat  the  court  considers  to 
be  to  the  best  advantage  of  all  parties  (sec.  5805),  no  limitation  being 
placed  upon  the  discretion  of  the  court.  The  sale  may  therefore  be 
public  or  private,  as  the  court  shall  direct  in  its  decree.  If  a  sale  at 
public  auction  is  directed,  it  may  be  as  well  to  follow  the  statutory 
mode  of  sales  upon  execution,  as  that  has  been  well  established  by  stat- 
ute, custom,  and  adjudication. 

473.  (Sec.  5805.)     Decree  authoriziru/  sale  of  entailed  estates, 

[Title.] 

Use  Finding  III.,  page  99;  or  if  default,  Finding  IV.,  page 
100,  and  continue :] 

The  court  further  find  that  the  plaintiff  has  an  interest  as 
tenant  for  life  [or  other  interest]  in  the  real  estate  described  in 
the  petition,  under  the  will  of  L.  B,  and  that  the  defendants, 
C.  D.  and  E.  F.,  are  the  heirs  in  tail  to  said  real  estate,  as 
in  the  petition  set  forth. 

And  it  being  made  to  appear  to  the  court  by  the  evidence 
adduced  that  a  sale  of  said  real  estate  as  asked  in  this  peti- 
tion would  1)6  for  the  benefit  of  said  plaintift',  and  would  do 
no  substantial  in/puy  to  the  defendants,  the  heirs  in  tail,  nor 
to  any  other  of  said  defendants,  it  is  ordered  and  decreed 
that  said  real  estate  be  sold,  freed  from  all  entailment,  limi- 
tation, or  condition,  in  the  manner  as  l)y  Uiw  provided  in  case 
of  sales   upon   execution  *  liy  J.  M.  F.,  who  is  hereby  ap- 


1  By  section  5318;  as  to  the  mean.s  of  enforcing  conveyance,  see  under  sec- 
tion 5399  Entry  No.  289.  If  no  conveyance  is  to  be  I^adf^  a  clause  should  he 
added  to  the  decree  n<  in  Tiote  2.  )>.  '2'A. 


-5811]  TO    SELL    ENTAILED    AND    OTHER   ESTATES.  261 

pointed  to  make  sucli  sale,  with  all  the  power  possessed  ]>y 
sheriffs  in  such  cases,  upon  his  giving  an  undertaking  in  the 
sum  of  $ to  the  approval  of  the  court ;  and  that  an  or- 
der issue  therefor  to  said  J.  M.  F.,  directing  him  to  appraise, 
advertise,  and  sell  said  premises  as  upon  execution  and  bring 
the  proceeds  into  court  for  further  order. 

If  desired  the  following  clause  may  be  added  to  the  above  decree : 

Addendum  authorizing  Pricate  Sale. 

Provided,  however,  that  at  any  time  before  sale  at  public 
auction  the  said  premises  may  be  sold  at  private  sale  on  terms 
of  [specify  terms  of  payment'],  at  a  sum  not  less  than  the  ap- 
praised value  thereof.  And  in  that  case  a  return  of  such 
sale,  with  the  proceeds  thereof,  shall  be  made  to  this  court 
for  further  order. 

474.  (Sec.  5807.)     Decree  of  confirmation ;  order  for  deed  and 

inrcstment. 
[Title.] 

This  cause  came  on  to  be  heard  on  the  return  of  J.  M.  F., 
heretofore  appointed  to  make  the  sale  of  the  premises  in  this 
case  ordered  to  be  sold,  with  his  report  of  his  proceedings 
and  sale  under  said  writ.  And  the  court  having  carefully 
examined  the  said  proceedings,  being  satisfied  that  the  said 
sale  has,  in  all  respects,  been  fairly  and  legally  made  and  in 
conformity  to  the  orders  of  this  court,  and  that  the  price  ob- 
tained is  the  reasonable  value  of  the  estate  sold,  do  there- 
fore approve  and  confirm  the  same,  and  order  that  the  said 
J.  M.  F.  make  to  the  purchaser  a  deed  in  fee  simple  for  the 
premises  so  sold. 

It  is  further  ordered  by  the  court  that  the  proceeds  of  such 
sale,  after  payment  of  the  cost  of  this  proceeding,  taxed  at 

S .  to  wit,  the  sum  of  8 ,  be  invested  in  [See  sees.  5809 

and  5811]  ;  and  for  the  purpose  of  making  such  investment 
and  managing  the  same,  the  court  hereby  appoints  R.  F.  and 
J.  X.  trustees,  who,  before  entering  upon  their  duties  as  such, 
shall  each  give  an  undertaking  to  the  approval  of  the  court 
for  the  faithful  performance  thereof  in  the    sum  of  $ . 


262  JOURNAL   ENTRIES.  [SEC.    5812- 

475.  Bonds  of  trustees  approved  etc. 
ITitle.'] 

And  now  come  R.  F.  and  J.  IST.,  heretofore  appointed  trus- 
tees in  this  case,  and  present  their  undertakings  in  the  sum 

of  $ each,  with  S.  T.  and  W.  P.  as  sureties  on  the  bond 

of  R.  F.,  and  T.  P.  and  "W.  C.  as  sureties  on  the  bond  of  J. 
]Sr.;  which  said  bonds  are  hereby  accepted  by  the  court. 

And  it  is  ordered  that  J.  M.  F.,  by  whom  the  sale  in  this 
case  was  made,  turn  over  to  these  trustees  all  money,  notes, 
and  securities  in  his  possession  arising  from  said  sale. 

476.  (Sec.  5812.)     Decree  for  sale  of  iwoperty  given  for  a  relig- 

ious use. 

\_Tiile:\ 

Finding  III.,  ^page  99;  or  if  default,  Finding  IV.,  page  100, 
and  continue ;] 

The  court  further  find  that  the  premises  in  the  petition  de- 
scribed are  held  in  trust  by  B.  F.  11.  for  the  use  of  [^describe], 
and  have  been  abandoned  for  such  use,  by  reason  of  \_describe']. 

It  is  therefore  ordered  and  decreed  that  said  premises  be 
sold  in  the  manner  as  b}^  law  provided  in  case  of  sales  upon 
execution,  etc.  [conclude  as  from  *,  in  No.  473]. 

Addendum  for  private  sale  may  be  made  as  under  sec.  5805,  page 
261. 

477.  Decree  for  confirmation,  order  for  deed  and  distribution. 
[Title.] 

Modify  decree  No.  225,  page  117. 


-5813.]  REPLEVIN,  263 


CHAPTER  XI. 
REPLEVIN. 

First.     Proceedings  whex  thk  property  has   been  delivered  to  the 

plaintiff. 

478.  (Sec.  5820.)     Order  for  sheriff  to  retain  heirlooms. 

1st.  In  case  of  jcdgmknt,  on  demitrrkr,  against  the  plaintiff — 

a.  Damages  assessed  b;/  the  court. 

479.  (Sec.  5824.)     Demurrer  to  petition  sustained. 

480.  (Sec.  5824.)     After  demurrer  sustained  damages  assessed  for  defend- 

ant, and  judgment. 

481.  (Sec.  5824.)     After  demurrer  sustained,  finding  against  defendant, 

and  judgment. 

482.  (Sec.  5824.)     Demurrer  sustained,    judgment  against   plaintiff,   and 

case  continued. 

483.  (Sec.  5824.)     Damages  assessed  for  defendant. 

484.  (Sec.  5824.)     Finding  against  defendant,  and  judgment  for  costs. 

485.  (Sec.  5S24.)     Demurrer  sustained,  damages  assessed  for  defendant, 

and  judgment. 

486.  (Sec.  5824.)     Demurrer   sustained,    finding   against   defendant,  and 

judgment  for  costs. 

I.   Damages  assessed  fry  a  jury. 

487.  (Sec.  5824.)     After  demurrer  sustained — case  sent  to  jury. 

488.  (.Sec.  5824.)     Demurrer  sustained,   judgment  against   plaintiff,  and 

case  sent  to  jury  for  inquiry  of  damages. 

489.  (Sec.  5824.)     Verdict  on  inquiry. 

490.  (Sec.  5824.)     Judgment  on  verdict  for  defendant. 

491.  (Sec.  5824.)     Judgment  on  verdict  against  defendant. 

2d.  In  case  of  plaintiff's  failure  to  prosf.cute  his  action — 

a.  Damages  assessed  by  the  court. 

492.  (Sec.  5824.)     Finding   for   defendant,    damages   assessed,  and  judg- 

ment. 

493.  (.Sec.  5824.)     Finding  against  right  of  defendant,  and  judgment. 

b.  Damages  assessed  by  a  jury. 

494.  (Sec.  5824.)     Verdict  on  plaintiff's  default  for  or  against  defendant. 

495.  (Sec.  5824.)     Judgment  on  verdict. 


264  JOURNAL   ENTRIES.  [SEC.  5814- 

Replevin  cases  certified  from  a  justice. 

498.  (Sec.  5824.)     Damages    assessed  by  the  court  for  defendant,  plaintiff 

being  in  default  for  petition. 

499.  (Sec.  5824.)     Finding   against   defendant  and  judgment  for   costs, 

plaintiff  being  in  default  for  petition. 

500.  (Sec.  5824.)     Verdict  of  jury  for  or  against  defendant  on  plaintiff's 

default  for  petition. 

501.  Judgment  on  verdict. 

3d.  Ix  case  of  defendant's  default — 

a.  Damages  assessed  by  (he  court. 

502.  Judgment  by  default  for  plaintiff. 

503.  Judgment  by  default  for  nominal  damages. 

504.  Judgment  by  default,  damages  waived. 

b.  Damages  assessed  by  a  juiy. 

505.  (Sec.  5825.)     Judgment  by  default  and  case  sent  to  jury  on  inquiry 

of  damages. 

506.  Verdict  on  inquiry. 

507.  Judgment  on  verdict. 

4th.   In  case  of  sub.mission  of  the  is-sue  to  the  court  or  a  jury — 

508.  Finding  by  the  court  and  judgment  for  plaintiff. 

509.  Finding  by  the  court  and  judgment  for  defendant. 

510.  (Sec.  5825.)     Verdict  of  jury. 
512.  (.Sec.  5825.)     Judgment  on  verdict. 
514.  Judgment  on  verdict  in  part  for  each. 

forms  of  verdict  in    replevin. 

I.  Verdict  for  plaintiff. 

II.  Verdict  finding  right  of  property  in  defendant. 

III.  Verdict  finding  riizht  of  possession  in  defendant. 

IV.  Verdict  finding  neither  right  of  property  nor  possession  in  defendant. 
V.  Verdict  finding  in  part  for  plaintiff  and  in  part  for  defendant. 

Second.     Proceedings  when  the  property  has  not  been  taken,  or  h.\s  been 
returned  to  the  defendant. 

First.     Peoceeding.s  when  the  property  has  been  delivered  to 

the  plaintiff. 

There  are  two  conditions  of  the  per.sonal  property,  the  subject  of  the 
action  in  replevin,  to  be  con.^idered.  Fird,  Wheu  the  property  has 
been  delivered  to  the  plaintiff  at  the  commencement  of  the  suit,  or  be- 
fore answer,  a.s  provided  for  in  section  5815  et  seq.  of  the  code.  Sec- 
ondly, Wheu  the  property  claimed  has  not  been  taken  by  the  plaintiff, 


-5823.]  REPLEVIN.  205 

or,  if  taken,  has  l)oen  returned  to  the  defendant  by  the  sheriff,  for  want 
of  an  undertaking,  a^  provided  for  in  section  5827. 

When  the  property  is  taken  by  the  plaintiff,  the  bond  which  lie  gives 
takes  the  place  '  ^  of  the  property,  as  between  the  parties  to  the  suit,  so 
that  the  plaintiff  becomes  invested  with  full  ownership  of  such  prop- 
erty, with  power  to  sell  and  dispose  of  it  at  pleasure,  and  to  confer  a 
valid  title  upon  the  jiurchaser.'-  So  that,  when  the  finding  is  in  his  ftivor, 
tiie  court  need  not  adjudge  the  property  to  him — he  has  it  already. 
Finding  and  judgment  may  be  had  against  the  ])laintiff,  either  on  de- 
murrer,' on  failure  of  prosecution  by  him,'  or  on  submission  of  the 
case  to  the  court  or  a  jury.^ 

But  in  neither  event  can  there  be  a  judgment  for  the  defendant  for 
the  return  of  the  property,^  except  in  the  case  of  heirlooms.  That  has 
vested  in  the  plaintiff,  and  all  that  the  defendant  can  recover,  except  heir- 
looms, is  the  value  of  the  property  and  such  damages  as  the  court  or 
jury  may  assess.  The  venlict,  if  for  the  defendant,  should  find 
whether  he  had  the  right  of  property,  or  right  of  possession  only  to 
property  taken  ;  for,  unless  it  specify  the  ground  on  which  the  assess- 
ment of  damages  is  made,  the  court  can  not  determine  whether  the 
damages  are  excessive  or  not.  They  might  be  excessive  if  the  right 
of  possession,  and  not  excessive  if  tlic  right  of  pro[)erty  was  found  in 
the  defendant.'^  If  damages  for  defendant  are  assessed  by  the  court, 
the  same  finding  must  be  made." 

Tlie  ease  of  heirlooms  is  specially  i)rovided  for  by  section  5820.  An 
order  may  be  made  that  the  sheriff  retain  them,  as  follows: 

478.  (Sec.  5820.)     Order  for  sheriff  to  retain  heirlooms. 

[Title  r\ 

On  motion  of  the  defendant,  and  it  appearing  that  the 
property  replevied  in  this  case  is  an  heirloom,  and  as  such  is 
valuable  to  this  defendant,  it  is  ordered  that  the  sheriff  re- 


1  Jennings  v.  Johnson,  17  Ohio,  154. 

2  Smith  r.  McGregor.  10  Ohio  St.  409;   followed  in  14  Ohio  St.  182. 

3  Sec.  5824. 

*  See.  5825;  and  as  to  damages  being  assessed  by  the  court,  on  submission,  see 
post,  p.  277. 

5 Smith  1-.  McGregor,  10  Ohio  St.  470. 
^  Hewson  v.  Saffin.  7  Ohio  ['2  pt.).  232. 
■  Wolf  V.  Meyer,  12  Ohio  St.  432. 


266  JOURNAL   ENTRIES.  [SEC.  5824- 

tain  and  safely  keep  the  same,  subject  to  the  further  order 
of  this  court. 

The  cases  in  which  finding  and  judgment  may  be  entered  will  be 
successively  considered,  viz.  : 

1.  In  case  of  judgment  on  demurrer  against  the  plaintiff. 

2.  In  case  of  plaintiff's  failure  to  prosecute  his  action. 

3.  In  case  of  defendant's  default. 

4.  In  case  of  submission  of  the  issue  to  the  court  or  a  jury. 

1st.  In  case  of  judgment  on  demurrer  against  the  plaintiff — 
By  section  5824,  judgment  may  be  rendered  by  the  court  against  the 
plaintiff  on  demurrer.  And  the  court  thereby  finds  against  the  plaint- 
iff's right  to  take  the  property  at  the  commencement  of  the  suit.^ 
But  still,  as  a  basis  for  the  assessment  of  damages  for  defendant,  the 
court  or  jury  must  find  that  the  defendant  had  either  a  right  of  prop- 
erty or  right  of  possession  in  the  property  taken,  at  the  commence- 
ment of  the  action  ;  for  if  he  had  neither,  he  can  recover  no  damages 
from  the  plaintiff,  although  the  plaintiff'  may  have  had  no  right  to 
take  the  property.     But  he  will  recover  costs  from  the  plaintiff - 

Upon  the  demurrer  to  plaintiff's  petition  being  sustained,  the  entry 
may  be  simply  one  sustaining  the  demurrer,  leaving  all  findings  as  to 
right  of  property  or  possession  in  the  parties  to  be  made  subsequently. 
But  if  the  demurrer  goes  to  the  merits  of  the  case,  it  will  be  better  to 
enter  a  judgment,  when  the  demurrer  is  sustained,  finding  against  the 
piaintiff's  right  of  possession,  as  in  Entry  No.  482,  page  267.  And 
if  the  defendant  is  ready  with  his  evidence  at  the  same  time  to 
show  his  right  of  property  or  possession,  and  the  court  is  willing  then 
to  hear  it,  there  is  no  reason  why  the  case  should  not  then  be  heard  in 
full,  and  judgment  entered  disposing  of  the  whole  case,  as  in  No.  485. 
But  in  cities  where  there  is  a  day  set  apart  for  the  hearing  of  demur- 
rers, the  court  will  not  generally  go  into  the  hearing  of  the  evidence  at 
that  time.     Both  forms  of  entries,  however,  are  given. 

479.  (Sec.  5824.)     Demurrer  to  ^petition  sustained. 

[Title.] 

This  cause  being  heard  on  the  demurrer  to   the  petition, 
the  court,  on  consideration,  sustain  the  same. 


•  See  Williams  v.  West,  2  Ohio  St.  82. 
■■^  Rowan  v.  Johnson,  2  W.  L.  M.  155. 


-5824.]  REPLEVIN.  267 

a.  Damages  assessed  by  the  court. 

If  no  amendment  is  askcil  or  made  the  court  may,  at  a  subsequent 
day,  enter  one  of  the  following  judgments : 

480.  (Sec.  5824.)     After  demurrer  sustained — damages  assessed 

for  defendant  by  the  court,  and  judgment 
entered. 
ITttlc.-] 

The  demurrer  to  tlie  petition  in  this  case  having  heretofore 
been  sustained,  and  the  plaintitf  not  pleading  further,  the 
court  now  find  that  at  the  commencement  of  this  action  the 
plaintiff  was  not  entitled  to  the  possession  of  the  property 
described  in  the  petition. 

[^Conclude  as  from  *,  in  Entry  No.  485.] 

481.  (Sec.  5824.)     After  demurrer  sustained— finding  against  de-^ 

fendanfs  right  to  damages,  and  judgment 
for  costs, 
[ntlc.] 

The  demurrer  to  the  petition  in  this  case  having  heretofore 
been  sustained,  and  the  plaintiff  not  pleading  further,  the 
court  now  find  that  at  the  commencement  of  this  action  the 
plaintiff  was  not  entitled  to  the  possession  of  the  property 
described  in  the  petition. 

\_Conclude  as  from  *,  in  Entry  No.  486.] 

But,  instead  of  simply  sustaining  the  demurrer,  as  in  Entry  Xo. 
479,  the  court  may  at  the  same  time  render  judgment  against  the 
plaintiff,  and  continue  the  case  for  assessment  of  damages,  as  follows : 

482.  (Sec.  5824.)    Demurrer  sustained,  judgment  against  j^laint- 

iff  and  case  continued. 

[Title.'] 

This  cause  coming  on  to  be  heard  upon  the  petition  and 
the  demurrer  thereto,  the  court,  on  consideration  thereof, 
find  that  said  demurrer  is  well  taken,  and  therefore  sustain 
the  same.  And  thereupon  the  court,  the  plaintiff  not  plead- 
ing further,  find  that  at  the  commencement  of  this  action  the 
plaintiff  was  not  entitled  to  the  possession  of  the  property 
in  his  petition  described.     And  for  inquiry  into^  and  assess- 


268  JOURNAL    ENTRIES.  [SEC.  5824- 

nient  of,  the  damages  to  which  the  defendant  is  entitled,  this 
case  IS  continued  for  further  hearing. 

After  the  further  hearing  by  the  court,  one  of  the  two  following 
judgments  may  be  entered  : 

483.  (Sec.  5824.)     Damages  assessed  for  defendant  by  the  court 

after  judgment  against  plaintiff  on  demur- 
rer, as  in  last  entry. 

\_Title.'] 

And  now  this  cause  came  on  for  inquiry  into  the  defend- 
ant's claim  for  damages,  and  was,  on  application  of  said  de- 
fendant, submitted  to  the  court  without  the  intervention  of 
a  jury* 

And  thereupon  the  court  find  upon  the  evidence  adduced 
that  at  the  commencement  of  this  action  the  defendant  had 
the  right  of  property  in  the  goods  and  chattels  in  the  petition 
described,  and  was  entitled  to  the  possession  thereof  [or,  had 
the  right  of  possession  to  the  said  goods  and  chattels],^  and 
assess  his  damages  against  the  plaintift'  by  reason  of  the  prem- 
ises at  S . 

It  is  therefore  considered  by  the  court  that  the  defendant, 

C.  D.,  recover  from  the  plaintiff,  A.  B.,  the  said  sum  of 

dollars,  so  assessed,  together  with  his  costs  herein  expended. 

[And  it  is  further  ordered  that  the  sheriff"  deliver  over  to 
the  defendant  the  property  heretofore  taken  from  him  and 
retained  as  heirlooms.] 

484.  (Sec.  5824.)     Finding  against  defendant's  right  to  damages, 

and  judgment  for    costs — after  judgment 
against  j)laintiff  on  deynurrer. 
\_Titlc.'\ 

As  in  last  to  *,  and  continue .-] — And  thereupon  the  court  find 
upon  the  evidence  adduced  that  at  the  commencement  of 
this  action  the  defendant  had  neither  the  right  of  property, 

1  It  is  error  for  the  court  to  assess  the  defendant's  damages  without  the  inter- 
vention of  a  jury,  and  without  finding  whether  the  defendant  had  the  right  of 
property,  or  the  right  of  possession  only,  at  the  commencement  of  the  action. 
Wolf  V.  Meyer,  12  Ohio  St.  432. 


-5824.]  REPLEVIN.  269 

nor  the  right  of  possession  in  the  goods  and  chattels  in  the 
petition  described. 

It  is  now  therefore  adjudged  by  the  court  that  both  parties 
go  lience  without  day,  and  that  the  defendant  recover  from 
the  plaintiff  liis  costs  herein  expended,  taxed  at  $ . 

Or,  at  tlie  time  tlie  demurrer  is  sustained,  damages  may  he  assessed  by 
the  court,  and  judgment  he  entei'ed  as  in  one  of  tlie  two  following  forms  : 

485.  (Sec.  5824.)     Demurrer  sustained,  damages  assessed  by  the 
court  for  defendant,  and  judgment. 

This  cause  now  coming  on  to  be  heard  upon  the  petition 
and  demurrer  thereto,  the  court,  on  consideration  thereof, 
find  that  said  demurrer  is  well  taken,  and  therefore  sustain 
the  same;  and  thereupon,  the  plaintiff  not  pleading  further, 
the  court  lind  that  at  the  commencement  of  this  action  the 
plaintiff  was  not  entitled  to  the  possession  of  the  property  in 
his  petition  described.* 

And  thereupon,  the  cause  being  further  heard  by  the  court 
upon  the  evidence  offered  by  the  defendant,  the  court  lind 
that  at  the  commencement  of  this  action  the  defendant  had 
the  right  of  property  in  the  said  goods  and  chattels,  and  was 
entitled  to  the  possession  thereof  [or,  had  the  right  of  pos- 
session to  the  said  goods  and  chattels],  and  assess  his  dam- 
ages against  the  plaintiff,  by  reason  of  the  premises,  at 
dollars. 

It  is  therefore  considered  by  the  court  that  the  defendant, 
C.  D.,  recover  from  the  plaintiff,  A.  B.,  the  said  sum  of 
$ ,  so  assessed,  together  with  his  costs  herein  expended. 

If  heirlooms  have  been  dclirered  to  sheriff,  add  : 

And  it  is  further  ordered  that  the  sheriff  deliver  over  to 

the  defendant  the  property  heretofore  taken  from  him  and 

retained  as  heirlooms. 

486.  (Sec.  5824.)  Demurrer  sustained ,  finding  against  defendant's 
rigid  to  damages,  and  judgment  for  costs.^ 
[TiHe.-]  '  ... 

^5  in  last  to  *,  and  continue:'] 
And  thereupon,  the  cause  being  further  heard  by  the  court 


270  JOURNAL   ENTRIES.  [SEC.  5824-. 

Upon  the  evidence  adduced,  the  court  find  that  at  the  com- 
aiencement  of  this  action,  the  defendant  had  neither  the  right 
of  property  nor  the  right  of  possession  in  the  goods  and 
chattels  in  the  petition  described. 

It  is  therefore  adjudged  by  tlie  court  that  botli  parties  go 
hence  without  day,  and  that  tlie  defendant  recover  from  the 
plaintiff  his  costs  herein  expended. 

h.  Damages  assessed  by  a  jury. 

If,  after  demurrer  sustained,  as  by  Entry  No.  479,  no  amendment  is 
asked,  the  court  may,  at  a  subsequent  day,  order  that  the  case  be  sent 
to  a  jury,  as  follows  : 

487.  (Sec.  5824.)     After  (Jcmurrer  sustained — ease  sent  to  jury. 
[Titter^ 

The  plaintiff  herein  not  pleading  further,  since  demurrer 
to  petition  sustained,  on  motion  of  the  defendant  it  is  or- 
dered that  this  case  be  sent  to  a  jury  to  inquire  into  and  as- 
sess the  damages  of  said  defendant. 

488.  (Sec.  5824.)     Dcmarrer  sustained,  judgment  against  plain- 

tiffs and  case  sent  to  Jtirg. 

[Title.] 

As  in  No.  485  to  *,  and  continue:'] 

And  on  motion  of  defendant,  it  is  ordered  that  the  case  be 
sent  to  a  jury  to  inquire  into  and  assess  the  damages  to 
which  the  defendant  is  entitled. 

489.  (Sec.  5824.)      Verdict  on  inquiry  for  or  against  defendant. 
ITitle.] 

And  now  this  cause  came  on  to  be  heard  upon  the  inquiry 
heretofore  ordered  by  the  court.  Also  came  the  following 
named  persons  as  jurors,  to-wit: 

1.  M.  B.,  etc.  7.  C.  H.,  etc. 

who  were  duly  impaneled  and  sworn  according  to  law. 

And  thereupon,  after  hearing  the  evidence  in  the  case,  the 
argument,  and  charge  of  the  court,  the  jury,  after  due  delib- 
eration, returned  their  verdict  in  writing,  signed  by  their 
foreman,  as  follows,  to-wit : 

\_Copy  verdict.     See  forms  on  page  279.] 


-5824.]  EEPLEVIN.  271 

490.  (Sec.  5824.)     Judgment  on  the  verdict  for  defendant. 
ITitle.'] 

The  jury  in  this  action  having,  on  inquiry  for  the  defend- 
ant, at  a  former  day  of  this  court,  assessed  his  damages 
against  the  plaintiif  at  $ : 

It  IS  therefore  considered  by  the  court  that  the  defendant, 

C.  ]).,  recover  from  tlie  plaintiff,  A.  B.,  the  said  sum  of 

dollars,  so  assessed,  together  with  his  costs  herein  expended. 

[And  it  is  further  ordered  tl:at  the  sheriff  deliver  over  to 
the  defendant  the  property  heretofore  taken  from  him  and 
retained  as  heirlooms.] 

491.  (Sec.  5824.)     Jiolr/ment  on  the  verdict  against  defendant. 
[TdU'.)  ' 

The  jury  in  this  aetiou  having,  on  inquiry  for  the  defend- 
ant, at  a  former  day  of  this  court,  found  that  he  had  neither 
the  right  of  property  nor  right  of  }>ossession  in  the  goods 
and  chattels  in  the  petition  described,  and  the  court  having 
befoi'C  found  that  neither  was  the  said  jtlaintitf  entitled  to 
the  same :  ^ 

It  is  therefore  considered  that  both  parties  go  hence  with- 
out day,  and  that  the  defendant  recover  from  the  plaintiff 
his  costs  herein  expended,  taxed  at  S .'- 

2d.     In  case  of   plaintiff's   failure   to    prosecute   his   ac- 
tion. 

This  case  is  not  so  couelusive  as  the  first.  There  is  a  mere  want  of 
prosecution,  or  a  mere  fault  ou  the  part  of  the  plaintiff,  which  in  no 
»vay  determines  his  rights,  and  which  will  not  preclude  him  from  com- 
ing in  and  giving  evidence  of  his  right  of  property  and  right  of  pos- 
session in  the  property,'^  before  the  jury  called  to  assess  defendant's 
damages.  In  this  view,  no  entry  need  be  made  on  the  journal,  of 
plaintiff's  deftiult  or  want  of  prosecution,  until  the  case  comes  to  trial. 
Then  at  a  trial  before  the  court  or  jury  the  whole  question  may  be 
heard.  If  the  plaintiff  appears,  he  may  give  evidence  to  prove  his 
right  of  possession.     If  not,  the  question  is  simply  as  to  the  defend- 

1  By  Entry  No.  488. 

'^  See  p.  2G6. 

»  Louden  v.  Clark,  1  W.  L.  M.  698. 


272  JOURNAL    ENTRIES  [SEC.  5824- 

ant's  right,  and  the  amount  of  damages  he  should  recover.  But  still, 
if  the  evidence  warrants  a  finding  or  verdict  for  the  plaintiff,  the  court 
or  jury  is  not  precluded  from  giving  it. 

In  cities  where  the  jury -room  is  separate  from  the  submitted  room, 
the  defendant  may,  as  soon  as  the  plaintiff  makes  default,  ask  that  the 
case  be  sent  to  the  jury-room,  and  it  will  then  come  on  for  trial  in  its 
order. 

Upon  the  hearing  of  the  case  by  the  court  or  jury,  the  following  en- 
tries may  be  made : 

a.  Damages  assessed  by  the  court. 

492.  (Sec.  5824.)     Finding  for  defendant,  damages  assessed  by 

the  court   and  judgment — after  plaintiff's 

default. 
[Title.] 

And  now  the  plaintiff  herein  failing  to  appear  either  in 
person  or  by  attorney  to  prosecute  his  action,  this  cause  came 
on  for  hearing,  on  application  of  the  defendant,  upon  inquiry 
into  the  right  of  property,  and  right  of  possession  of  the  said 
defendant  to  the  property,  taken  by  the  said  plaintiff,  and 
was  submitted  to  the  court  upon  the  evidence  offered  in  be- 
half of  said  defendant.*     [Conclude  as  from  *,  in  No.  483.] 

493.  (Sec.  5824.)     Finding  against  rigid  of  defendant  to  dam- 

ages, and  judgment  for  costs — after  plaint- 
iff''s  default. 

[Title.] 

As  in  last  to  ^,  and  continue:] — And  inereupon  the  court 
find  that  at  the  commencement  of  this  action  the  defendant 
had  neither  the  right  of  property  nor  right  of  possession  in 
the  goods  and  chattels  in  the  petition  described. 

It  is  therefore  considered  by  the  court  that  both  parties  go 
hence  without  day,  and  that  the  defendant  recover  from  the 
plaintifl'  his  costs  herein,  taxed  at  § . 

b.  Damages  assessed  by  a  .iiry. 

,494.  (Sec.  5824.)      Verdict  on  plaintiff's  default,  for  or  against 
defendant. 
[Title.] 
And    now  the  plaintiff  herein   having  failed  to   appear. 


-5824.]  REPLEVIN.  273 

either  in  person  or  by  attorney,  to  prosecute  this  action,  the 
cause  came  on  for  hearing  on  application  of  the  defendant, 
for  hearing  upon  inquiry  into  the  right  of  property,  and  right 
of  possession  of  the  said  defendant  to  the  property,  taken 
by  the  said  plaintiff. 

Also  came  the  following  named  persons  as  jurors,  to  wit  : 
1.  M.  B.,  7    C  T., 

etc.  etc 

who  were  duly  impaneled  and  sworn  according  to  law.* 

And  the  case  heing  submitted  to  the  jury  upon  the  evidence 
and  argument  for  the  defendant  and  charge  of  the  court, 
the  said  jui"y,  after  due  deliberation,  returned  their  verdict 
in  writing,  signed  by  their  foreman,  as  follows,  to  wit  :  {^Copy 
verdict.     Sec  forms  on  pages  279  and  280.] 

495.  (Sec.  5824.)     Jadqment  on  the  last  verdict. 
[Title.] 
Same  as  Nos.  400  or  491. 

Keplevin  cases  certified  from  a  justice — 

The  most  usual  cases  wherein  the  plaintiff  fails  to  prosecute  his  ac- 
tion are  those  certified  from  a  justice,  iu  which  the  plaintiff  fails  to  file 
his  petition.  The  statute  fixes  no  special  time  within  which  the  peti- 
tion must  be  filed,  but  it  is  usually  done  by  rule  of  court. ^  If  not,  it 
is  probable  that  the  ])laintiff  is  always  in  default  until  he  files  his  pe- 
tition. 

Section  0(318  provides  that  whenever  the  appraised  value  of  the 
property  so  taken  shall  exceed  three  hundred  dollars,  tlie  justice  shall 
certify  the  proceedings  upon  the  said  writ  to  the  court  of  common  pleas 
of  his  county,  and  thereupon  shall  file  the  original  papers,  together 
with  a  certified  transcript  of  his  docket  entries,  in  the  clerk's  office  of 
said  court,  the  case  there  to  be  proceeded  in  as  if  such  suit  had  com- 
menced in  said  court. 

After  the  case  is  docketed  in  the  common  pleas  court,  the  plaintiff 
must,  within  the  time  limited  by  the  rule  of  the  court,  file  his  peti- 

1  The  rule  adopted  by  the  Common  Pleas  Court  of  Hamilton  county  allows 
the  same  time  for  tiling  pleadings  as  allowed  in  cases  appealed  from  a  justice, 
by  section  6-398,  counting  from  the  time  that  the  case  is  docketed  in  the  common 
pleas  court. 


274  JOURNAL    EN-TRIES.  [SEC.  5824- 

tion.  When  that  is  done,  the  case  stands  in  all  respects  as  if  the  pe- 
tition had  been  originally  filed  in  the  common  pleas,  and  the  same  en- 
tries are  used. 

If  the  plaintiff  fails  to  file  his  petition,  the  <lefendant  is  then  entitled 
to  have  the  court  or  a  jury,  as  in  section  5824  of  the  code,  inquire  into 
his  right  of  property  and  right  of  possession  to  the  property  taken. 
But  in  that  case  the  defendant,  before  proceeding  to  have  his  damages 
assessed,  should  file  a  petition.^ 

Where,  in  such  a  case,  the  plaintiff  is  in  default,  and  the  defendant 
has  given  evidence  upon  an  inquiry  of  damages,  the  plaintiff  may,  in 
answer  to  the  proofs  of  the  defendant,  give  evidence  that  he  is  the 
owner  and  entitled  to  the  possession  of  the  property,  and  such  evidence 
will  preclude  the  defendant  from  a  judgment  for  either  nominal  dam- 
ages or  costs.  ^ 

498.  (Sec.  5824.)     Damarjes  assessed  by  the  court  for  defendant, 

in  case  certified  from  a  justice — 'plaintiff' 
having  failed  to  file  a  j^etition. 

[Title.-] 

And  now  the  plaintiff  herein  being  in  default  for  petition, 
this  cause,  on  application  of  the  defendant,  came  on  for  hear- 
ing, upon  inquiry  into  the  right  of  property,  and  right  of 
possession  of  the  defendant  to  the  property,  taken  by  the 
plaintift",  and  was  submitted  to  the  court  without  the  inter- 
vention of  a  jury,  upon  the  certified  transcript  of  the  pro- 
ceedings of  M.  K.,  a  justice  of  the  p)eace  [the  petition  of  the 
defendant],  and  the  evidence  offered  in  his  behalf.*  [Con- 
clude as  from  *,  in  No.  483.] 

499.  (Sec.  5824.)     Flndinq   against  defendant's   right  to  dam- 

ages  and  Judgment  for  costs  in  case  certi- 
fied from  a  justice — tliougJi  plaintiff  in  de- 
fault for  petition. 
[Title.] 

As  in  last  to  *,  and  continue :] 

And  thereupon  the  court  find,  upon  the  evidence  adduced, 
that  at  the  commencement  of  this  action  the  defendant  had 
neither  the  right  of  property  nor  the  right  of  })OSsession  in 
the  goods  and  chattels  in  the  petition  described. 

1  Louden  v.  Clark,  1  W.  L.  M.  598. 


—5824.]  REPLEVIN.  275 

It  is  therefore  considered  by  the  court  that  both  parties  go 
hence  without  day,  and  that  the  defendant  recover  from  the 
plaintiff  liis  costs  lierein  expended. 

500.  (Sec.  5824.)      Verdict  for  or  against  defendant  in  case  cer- 

tified, from  a  justice  on  jdaintiff's  defavM 
for  j)etition. 

And  now  tlic  plaintiff  herein  being  in  default  for  petition, 
this  cause,  on  application  of  the  defendant,  came  on  forbear- 
ing upon  inquiry  into  the  right  of  property  and  right  of  pos- 
session of  the  defendant  to  the  property  taken  by  the  plaintiff. 

Also  came  the  iollowing  named  persons  as  jurors,  to  wit: 
1.  M.  r.,      '  7.  C.  T., 

etc.  etc. 

who  were  duly  impaneled  and  sworn  according  to  law. 

And  the  case  was  submitted  to  the  jury  upon  the  certified 
transcript  of  the  pi-occcdings  of  M.  K.,  a  justice  of  the  ])eace 
[the  petition  of  the  (Icfeiuhmt],  and  the  evidence  offered  in 
behalf  of  said  defendant.  And  thereupon,  after  the  hearing 
of  the  same,  the  jury,  after  due  deliberation,  returne'd  their 
verdict  in  writing,  signed  by  their  foreman,  as  follows, 
to  wit :   \_Copil  rcrdict.'] 

501.  Jadgmcnt  on  the  last  verdict  mag  he  tJie  same  as  Kos.  490 

or'401. 
[Title,] 

3d.  Ix  case  of  defendant's  default — 

a.  Damages  AssKsst:i)  bv  tue  court. 

If  the  defendant  is  in  default,  the  plaintiff  may,  "  with  the  assent 
of  the  court,"  under  section  5204,  waive  a  jury,  and  the  court  may 
assess  the  damages.  Or,  by  section  5825,  a  jury  may  assess  the 
damages. 

502.  Judgment  by  default  for  plaintiff — damages  assessed  by  the 

court. 
[Title.] 
Now  comes  the  plaintiff  herein  by  his  attorney,  and  the  de- 


276  JOURNAL    ENTRIES.  [SEC.  5824- 

fendant  being  in  default  for  answer  and  demurrer,  the  court 
find,  upon  the  petition  and  evidence,  that  at  the  commence- 
ment of  this  action  the  phiintifF  had  tlie  right  of  possession^ 
in  the  property  described  in  the  petition,  and  that  the  defend- 
ant unlawfully  withheld  the  same  ;-*  and  that  the  plaintiff  is 
entitled  to  recover  his  damages,  by  reason  of  the  premises, 
from  the  said  defendant. 

And  the  plaintiff,  waiving  a  jury  and  asking  that  his  dam- 
ages be  assessed  by  the  court,  the  court  do  now,  upon  the 
evidence  adduced,  assess  the  same  at  $ . 

It  is  therefore  considered  that  the  plaintiff  recover  from 

the  defendant  the  said  sum  of  S ,  together  with  his  costs 

herein  expended. 

503.  Judgment  by  default  for  plaintiff ^  for  nominal  damages. 
[Title.'] 

As  in  No.  502  to  *.  anil  continue :] — and  the  plaintiff  waiv- 
ing a  jury,  the  court  assess  the  damages  of  the  plaintiff  there- 
for at  one  cent. 

It  is  therefore  considered  that  the  plaintiff  recover  from 
the  defendant  his  said  damages,  together  with  his  costs  here- 
in expended.  * 

504.  Judgment  by  default  for  pudntiff — damages  icaived. 
[Title.] 

As  in  No.  502  to  *,  and  continue:] — 

And  the  plaintiff  waiving  all  damages  for  the  said  deten- 
tion, it  is  therefore  considered  by  the  court  that  the  said 
plaintiff  recover  from  the  said  defendant  his  costs  herein  ex- 
pended, taxed  at  $ . 

1  The  only  title  necessary  to  enable  a  person  to  maintain  replevin  is  tlie  im- 
mediate ])Ossessiim  of  the  property.  It  is  therefore  sufficient  for  the  court  or 
jury,  in  finding  for  the  plaintifl",  to  find  the  7-ight  of  possession  in  the  plaintiff  at 
the  commencement  of  the  suit.     See  Williams  v.  West,  2  Ohio  St.  82. 

2  The  gist  of  the  actitm  is  the  unlawful  detention  of  the  property.  The  as- 
sessment of  damages  for  the  plaintiff  must  therefore  be  based  on  such  unlawful 
detention.     See  Williams  v.  West,  supra. 


-5825.]  REPLEVIN.  277 

b.    DaMAGFS    ASSESSKI)    bv    a    juky. 

505.  (Sec.  5825.)     Judgment  by  default  for  j)laintiff,  and  case 

sent  to  jury  on  inquiry  of  damages. 

[Title.'] 

Now  comes  the  pluintifF  herein  by  his  attorney,  and  the 
defenihmt  being  in  dci'aultfor  answer  and  demurrer,  the  court 
,find,  upon  the  petition  and  evidence,  that  at  the  commence- 
ment of  this  action  the  plaintiff  liad  the  riglit  of  possession 
in  the  property  described  in  the  petition,  and  that  tlie  defend- 
ant unlawfully  withheld  the  same  ;*  and  that  the  plaintiff  is 
entitled  to  recover  his  damages,  by  reason  of  the  premises, 
from  the  said  defendant. 

And,  on  motion  of  said  idaintitf,  it  is  ordered  that  the  case 
be  sent  to  a  jury,  that  upon  their  inquiry  his  said  damages 
may  be  assessed. 

506.  Verdict  ov  inquiry. 
[Tdle.'\ 

[  Use  Entry  ^o.  262.] 

507.  Judyment  on  verdict.  '■ 
ITitlc.'] 

\_Use  Entry  No.  263.] 

4th.  In  case  of  submission  of  the  issue  to  the  court  or  a 

JURY — 

Sections  5825  aud  5826  provide  for  the  submission  of  replevin  cases 
to  a  jury  on  issue  joined,  and  contemplate  a  trial  as  in  other  jury  oases. 

These  sections  do  not  provide  for  a  trial  by  the  court,  without  a 
jury,  on  submission  of  the  issue,  nor  does  any  other  section  of  the  code 
relating  to  replevin.  But,  by  virtue  of  section  5204,  a  jury  may, 
"  with  the  assent  of  the  court,"  be  waived.  If  a  jury  is  waived,  the 
court,  iu  assessing  damages  for  defendant,  must  make  the  same  finding 
that  the  jury  is  required  to  by  section  5826,  as  to  whether  the  defend- 
ant had  the  right  of  property,  or  the  right  of  possession  only,  at  the 
commencement  of  tlie  action.' 

1  Wolf.  V.  Mever.  12  Ohio  St.  432.      * 


278  JOURNAL   ENTRIES.  [SEC.  5525- 

508.  Finding  by  the  court,  and  judgment  for  plaintiff. 
ITitle.'] 

And  now  this  cause  coming  on  for  hearing,  and  a  jury 
heing  waived,  was  submitted  to  the  court  upon  the  pleadings 
and  evidence.  And  on  consideration  thereof,  the  court  find 
on  the  issue  joined*  for  the  phiintiif,  and  find  that  at  the 
commencement  of  this  action  the  pUxintifF  was  entitled  to 
the  possession  of  the  goods  and  chattels  described  in  the  pe- 
tition, and  that  the  defendant  unlawfully  detained  the  same, 
and  do  assess  damages  to  the  plaintiff  by  reason  of  the 
premises  at  $ . 

It  is  therefore  considered  by  the  court  that  the  said  plaint- 
ifi"  recover  from  said  defendant  the  said  sum  of  -$ ,  to- 
gether with  his  costs  herein  expended. 

509.  Finding  by  the  court  and  Judgment  for  defendant. 
[Title.] 

As  in  last  to  *,  and  continue:'] — for  the  defendant,  and  that 
at  the  commencement  of  this  action  the  defendant  [had  the 
rio-ht  of  property  in,  and]  was  entitled  to  the  immediate  pos- 
session of,  the  goods  and  chattels  in  the  petition  described; 
and  do   assess  his  damages  by   reason  of  the    premises   at 

It  is  therefore  considered  by  the  court  that  the  defendant 

recover  from  the   plaintilf  the   said   sum  of  $ ,  together 

with  his  costs  herein  expended. 

510.  (Sec.  5825.)      Verdict  of  jury,  on  submission. 
[Title.] 

Use  regular  forms  under  Subdivision  2,  p.  55,  ante.  The  ver- 
dict will  be  in  the  form  of  one  of  those  given  on  pages  279  and  280. 

512.  (Sec.  5825.)     Judgment  on  the  verdict. 

[Title.] 

If  no  motion  for  new  trial  is  made,  use  Entry  No.  249;  if  mo- 
tion is  made  and  overruled,  use  No.  252  ;  and  in  case  of  heir- 
looms, add:] — 

And  it  i*  further  ordered  that  the  sherifi"  deliver  over  to 


-5826.]  REPLEVIN.  279 

the  property  heretofore  taken  by  him  and  retained  as 

an  heirloom. 

514.  Judgment  on  verdict  in  part  for  each} 

[Title.'] 

Tlio  jury  heretofore  impaneled  and  sworn  herein  having 
rendered  their  verdict  for  the  plaintiff*  in  the  sum  of  forty 
dollars,  and  for  the  defendant  in  the  sum  of  twenty  dollars : 

It  is  therefore  considered  by  tlie  court  that  the  plaintiff" 
recover  from  the  defendant,  C.  D.,  the  said  sum  of  forty  dol- 
lars, together  with  his  costs  in  that  behalf  expended  ;  and 
that  the  defendant  recover  from  the  plaintitF,  A.  B.,  the  said 
sum  of  twenty  dollars,  together  with  his  costs  in  that  behalf 
expended. 

Forms  of  Vehdicts  in  Keplevin. 
/.    Verdict  for  plaintiff'. 

"We,  the  jury,  iiiid  that  at  the  commencement  of  this  ac- 
tion the  ])huntiff"  was  entitled  to  the  possession  of  the  prop- 
erty described  in  the  })etition,  and  that  the  defendant  unlaw- 
fully detained  the  same  ;  and  we  do  assess  the  damages  of  the 
plaintiff"  against  the  defendant,  l)y  reason  of  the  premises,  at 


II.  Verdict  finding  right  of  property  in  defendant. 

"  We,  the  jury,  find  that  at  the  commencement  of  this  ac- 
tion the  defendant  had  the  right  *  of  property  in  the  goods 
and  chattels  in  the  petition  described,  and  was  entitled  to  the 
possession  thereof;  and  we  do  assess  his  damages  against  the 
plaintiff",  by  reason  of  the  premises,  at dollars." 

III.  Verdict  finding  right  of  j^ossession  in  defendant. 

"  We,  the  jury,  find  that  at  the  commencement  of  this  ac- 
tion the  defendant  had  the  right  of  possession  in  and  to  the 
goods  and  chattels  in  the  petition  described  ;  and  we  do  as- 

'In  replevin  for  several  articles,  where  the  jury  find  for  the  plaintiff  as  to 
part  of  them,  and  for  the  defendant  as  to  part,  assessing  to  each  the  proper 
damages,  separate  judgments  will  be  entered  for  each,  with  full  costs.  Clark  v. 
Keith,  9  Ohio,  72. 


280  JOURNAL   ENTRIES.  [SEC.  5827- 

sess  Ms  damages  against  the  plaintiff,  by  reason  of  the  prem- 
ises, at dollars." 

IV.  Verdict  finding  that  defendant  had  neither  right  of  'pro'perty 
nor  fossession. 

"  "We,  the  jury,  find  that  at  the  commencement  of  this  ac- 
tion the  defendant  had  neither  the  right  of  property  nor 
right  of  possession  in  the  goods  and  chattels  in  the  petition 
described." 

V.  Verdict  finding  in  part  for  plaintiff  and  in  part  for  defend- 
ant.^ 

"We,  the  jury,  find  that  at  the  commencement  of  this  ac- 
tion the  plaintift'  had  the  right  of  possession  in,  and  to,  the 
following  of  the  goods  and  chattels  in  the  petition  described  ; 
to  wit  [^specifically  describel ;  and  that  the  defendant  unlaw- 
fully detained  the  same  ;  and  we  do  assess  his  damages  there- 
for at  forty-five  dollars.  And  we  do  further  find  that  at  the 
commencement  of  this  action  the  defendant  had  the  right  of 
property  in,  and  was  entitled  to,  the  possession  of  [or,  had  the 
right  of  possession  in]  the  balance  of  said  goods  and  chattels, 
and  we  do  assess  his  damages  therefor  at dollars." 

Second.  Proceedings  when  the  property  has  not  been  taken, 

OR  HAS  been  returned  TO  THE  DEFENDANT. 

Section  5827  of  the  code  provides  that,  in  the  above  cases,  the  ac- 
tion may  proceed  as  one  for  damages  onh^  and  that  the  plaiutifl"  shall 
be  entitled  to  such  damages  as  are  right  and  proper. 

If  the  property  be  taken  by  the  plaintiff,  and  returned  to  the  defend- 
ant for  want  of  the  undertaking  required  by  section  5819,  the  judg- 
ment entry  should  require  the  })laintiff  to  pay  all  costs  made  by  taking 
the  same,  although  he  otherwise  recover  costs  from  the  defendant." 

Use  the  ordinary  forms  of  entering  verdict,  p.  55  et  seq.,  and  of 
Judgment  on  Verdict,  p.  133  et  seq. 


1  Clark  V.  Keith,  9  Ohio,  72.  '  Sec.  5827. 


-5847.]  SURETIES — RIGHTS    AND    REMEDIES   OF.  28) 

CHAPTER  Xn. 

SURETIES— RIGHTS  AND  REMEDIES  OF. 

515.  (Sec.  5419.)     Addendum  certifying  suretyship. 

51().  (Sec.  5833.)     Judgment  in   favor  of  surety  for  plaintiff's  failing  to 
pirosecute  principal. 

Sec.  5419  provides  for  certifying,  in  entering  a  judgment  against 
principal  and  surety,  Avhich  of  the  defendants  is  principal  debtor  and 
which  surety;  when,  at  the  time  of  taking  judgment,  "it  shall  be 
made  to  aj)pear  to  the  court  by  parol  or  other  testimony,"  that  one  or 
more  of  such  defendants  is  surety  or  bail  for  his  or  their  co-defendants, 
and  judgment  in  that  form  asked. 

When  sucli  finding  is  made,  enter  the  judgment  in  the  usual  form, 
and  add : 

515.  (Sec.  5419.)     Addendum  ccrtifii'nui  suretyship)} 
intle.'] 

And  it  being  made  to  a{»[»ear  to  the  court  tliat  the  <lefend- 
ant,  E.  F..  signed  the  note  [or,  other  instrununt  of  ivriting']  here 
sued  on  as  surety  \_or,  bail]  for  his  co-defendant,  the  court 
find  that  C.  D.  is  principal  debtor,  and  E.  F.  surety  [or,  bail], 
in  the  above  judgment ;  and  it  is  ordered  that  execution  is- 
sue accordingly. 

516.  (Sec.  5833.)     Jiidgraent  in  favor  of  suref)/,  for  plaintiff \s 

faiUnq  to  prosecute  principal. 

[Title.] 

After  entering  judgment  against  the  principal  in  the  usual 
form,  continue :] 

And  it  being  shown  to  the  court  by  the  defendant.  E.  F., 
that  he  was  surety  for  his  co-defendant,  C.  D..  and  that  he 

heretofore,  to  wit,  on  the day  of .  18 — ,  gave  notice 

in  writing  to  the  plaintiff  herein  to  commence  an  action 
against  the  defendant,  C.  D.,  the  principal  debtor  herein, 
which  the  said  plaintiiF  failed  to  do  within  a  reasonable  time 
thereafter  [or,  specify  other  neglect']  ;  it  is  therefore  considered 

1  For  a  judgment  entered  in  this  way,  see  Gatch  v.  Simpkins,  25  Ohio  St.  89. 


282  JOURNAL    ENTRIES.  [SEC.  5848- 

by  the  court  that  the  defendant,  E.  F.,  go  hence  without  day 
and  recover  from  the  plaintiff  his  costs  herein  expended. 


CHAPTER  Xin. 

TAXES  AND  ASSESSMENTS— RELIEF  AGAINST  ILLEGAL. 

517.  (Sec.  5848.)     Final  decree  enjoining  illegal  levy. 

518.  (Sec.  5848.)     Final  decree  enjoining  collection  of  illegal  taxes. 

519.  (Sec.  5848.)     Judgment  for  recovery  of  taxes  illegally  assessed. 

517.  Sec.  5848.)     Final  decree  evjoining  illegal  levy. 

ITitle.-] 

Use  Finding  III.,  page  99;  or  if  by  default,  Finding  IV.^ 
page  100,  aud,  continue-] 

And  the  court  further  find  that  the  levy  of  the  taxes  [ovy 
assessment]  on  the  property  of  the  plaintiflt',  as  complained 
of  in  the  petition,  is  illegal,  and  that  the  plaintiff  is  entitled 
to  the  relief  prayed  for. 

It  is  therefore  ordered   and  decreed  that  the  levy  of  the 

taxes  [or,  assessment]  for  the  use  of  the  defendant, ,  on 

the  property  of  the  plaintiff,  as  complained  of  in  the  said  pe- 
tition, be,  and  the  same  hereby  is,  forever  enjoined. 

[Add  such  order  as  to  costs  as  court  shall  make.'] 

558.  (Sec.  5848.)  Final  decree  enjoining  collection  of  illegal 
taxes. 

[Title.] 

Finding  111.,  page  99;  or  if  by  default,  use  Finding  IV.y 
page  100,  and  continue  ;] 

And  the  court  further  find  that  the  levy  of  the  taxes  [or, 
assessment]  on  the  property  of  the  plaintiff,  as  complained 
of  in  the  petition,  is  illegal,  and  that  the  plaintiff  is  entitled 
to  the  relief  prayed  for. 

It  is  therefore  ordered  and  decreed  that  the  defendant  be, 
and  hereby  is,  forever  enjoined  from  collecting  from  the 
plaintiff'  the  taxes  [or,  assessment]  complained  of  in  the  pe- 
tition. 

[Adul  order  of  the  court  as  to  eosts.'^ 


-5853.]  TO    CHANGE    NAME.  283 

519.  (Sec.  5848.)  Judgment  for  recovery  of  taxes  illegally  as- 
sessed. 

[ime.] 

Finding  111.,  page  99  ;  or  if  by  default,  Finding  IV.,  page 
100,  an(/  continue:'] 

The  court  furtlier  iiiid  that  the  tax  comphiiucd  of  in  the 
petition  was  collected  by  the  defendant,  C.  D.,  under  an  il- 
legal assessment,  and  that  the  plaintiff  is  entitled  to  recover 
the  money  so  collected  from  him,  witli  interest  thereon  from 
the  date  of  payment ;  and  that  there  is  due  to  him,  by  rea- 
son of  the  premises,  the  sum  of  $ . 

It  is  therefore  considered  that  the  plaintifl',  A.  B.,  recover 

from  the  defendants  the  said  sum  of dollars,  together 

with  his  costs  herein  expended,  taxed  at  S \_or  other  order 

as  to  costs'].  And  the  county  auditor  is  hereby  authorized  and 
directed  to  issue  his  warrant  on  the  county  treasurer  for  the 
amount  so  found  due.' 


CHAPTER   XIV. 

TO  CHANGE  NAME. 

520.  (Sec.  5853.)     Decree  changing  name  of  person. 

521.  (Sec.  5854.)     Decree  changing  name  of  town. 

522.  (Sec.  5855.)     Decree  changing  name  of  incorporated  company. 

520.  (Sec.  5853.)     Decree  changing  name  of  a  person. 

[Title.] 

Now  came  the  petitioner  herein,  by  his  attorney,  and  there- 
upon his  said  petition  came  on  to  be  heard.  And  the  court 
being  satisfied  by  proof  in  open  court  of  the  truth  of  the 
facts  set  forth  in  the  petition,  and  that  there  exists  proper 
and  reasonable  cause  for  changing  the  name  of  the  petitioner, 
and  that  due  notice  of  the  intended  application  in  said  pe- 
tition was  given  by  publication  in  the  Cincinnatti  Daily  Ga- 

1  By  section  1024. 


284  JOURNAL    ENTRIES.  [SEC.  5854- 

zette,  a  newspaper  in  general  circulation  in  this  county,  thirty 
days  before  the  tiling  of  the  said  petition  : 

It  is  therefore  ordered  and  decreed  by  the  court  that  the 
name  of  this  petitioner,  A.  B.,  be,  and  the  same  hereby  is, 
changed  to ,  as  prayed  for  in  said  petition. 

It  is  further  ordered  that  the  petitionee  pay  the  costs  herein 
within days,  or  that  execution  issue  therefor. 

521.  (Sec.  5854.)     Decree  changing  name  of  town,  etc. 
[Title.] 

Xow  came  the  petitioners  herein,  by  their  attorney,  and 
thereupon  their  said  petition  came  on  to  be  heard.  And  the 
court  being  satistied  that  the  prayer  of  the  petition  is  just 
and  reasonable,  and  that  due  notice  of  the  intended  applica- 
tion therein  was  given  by  publication  in  the  Cincinnati  Daily 
Enquirer,  a  newspaper  of  general  circulation  in  this  county, 
for  thirty  daj's  before  the  filing  of  said  petition,  and  that 
three-fourths  of  the  inhabitants  of  the  said  town,  repre- 
sented by  the  said  petitioners,  desire  the  change  of  name  in 
the  petition  prayed  for,  and  that  there  is  no  other  town  or 
village  or  hamlet  in  this  state  with  the  same  name  as  the  one 
herein  prayed  for. 

It  is  therefore  ordered  and  decreed  that  tlie  name  of  the 

said  town  of be,  and  the  same  hereby  is,  changed  to , 

as  prayed  for  in  said  petition. 

It  is  further  ordered  that  the  petitioners  herein  pay  the 

costs  of  this  proceeding  within days,  or  that  execution 

issue  therefor. 

522.  (Sec.  5855.)     Decree   changing    name    of  an   incorporated 

company. 

[Title  ?^ 

I^ow  came  the  directors  of  the  Buckeye  Cannel  Coal  Com- 
pany, an  incorporated  company  within  this  state,  by  their 
attorney,  and  thereupon  their  said  petition  came  on  to  bo 
heard.  And  upon  good  cause  shown,  and  it  appearing  to  the 
court  that  due  notice  of  the  object  and  prayer  of  said  petition 
was  given  by  publication  in  the  Cincinnati  Daily  Commercial, 


-5861.]  TO    CONTEST    WILL.  285 

:i  newspaper  of  general  circulation  in  this  county,  thirty  days 
before  the  filing  of  the  said  petition  : 

It  is  therefore  ordered  and  decreed  by  the  court  that  the 
name  of  the  said  company  be,  and  it  hereby  is,  changed  to 
,  as  prayed  for  in  said  petition. 

It  is  further  ordered  that  the  petitioner  pay  the  costs  herein 
within days,  or  that  execution  issue  therefor. 


CHAPTER  XV. 

TO  CONTEST  WILL. 

523.   (Sec.  SSftL)     Order  for  iiiakiii;.;  up  i.ssue  for  jury,  etc. 
■')24.   (Sec.  ')S()L)     Verdict  of  the  jury  entered. 
525.  (Sec.  5S5L)     Judgment  on  the  verdict. 

It  is  error  for  tlie  court  to  proceed  by  mere  decree,  and  without  the 
intervention  of  a  jury  to  set  aside  a  will.' 

523.  (Sec.  58G1.)  Order  making  up  issue  for  jury  when  no  is- 
sue is  made  by  the  pleadings. 

[Tide.] 

It  appearing  to  the  court  that  the  plaintiff  in  this  case 
seeks  to  set  aside  a  certain  paper  writing  purporting  to  be 
the  last  will  and  testament  of  T.  G.,  late  of  the  county  of 
F.,  deceased,  which  has  been  admitted  to  probate,  according 
to  the  statute  in  such  cases  made  and  provided,  and  no  issue 
being  made  up  by  tlie  pleadings,  it  is  now  ordered  that  the 
validity  of  said  will  be,  and  it  hereby  is,  put  in  issue  be- 
tween the  parties,  and  that  it  be  ascertained  by  the  verdict  of 
the  jury  whether  said  writing  is  the  last  will  and  testament 
of  said  T.  G.  or  not.- 

1  Holt  V.  Lamb,  17  Ohio  St.  374;   Walker  v.  Walker,  14  Ohio  St.  157. 
-See  Green  v.  Green,  5  Ohio,  279,  for  an  issue  out  of  chancery. 

19 


286  JOURNAL    ENTRIES.  [SEC.  5861- 

524.  (Sec.  5861.)      Verdict  of  the  jury  entered. 
[Title.'] 

Use  the  regular  forms,  ante,  -p.  55  et  seq.,  and  let  the  verdict  be :] 
"  "VVe,  the  j  ary,  on  the  issue  joined,  find  that  the  paper  writ- 
ing here  shown  to  us  and  admitted  to  probate  in  tlie  Probate 

Court  of county,  State  of  Ohio,  on  the day  of , 

18 — ,  purporting  to  be  the  hist  will  and  testament  and  codi- 
cil of  C.  J.,  deceased,  is  \_or,  is  not]  the  valid  last  will  and 
testament  and  codicil  of  the  said  C.  J.,  deceased." 

525.  (Sec.  5861.)     Judgment  on  verdict. 
[Title.] 

The  jury  in  this  action  having,  on  a  former  day  of  this 

term,  rendered  a  verdict  for  the ,  and  no  motion  for  a 

new  trial  having  been  made  : 

It  is  therefore,  in  accordance  with  said  verdict,  adjudged 
by  the  court  that  the  paper  writing  produced  in  this  case,  and 
offered  in  evidence,  purporting  to  be  the  last  will  and  testa- 
ment and  codicil  of  the  said  C.  J.,  deceased,  is  [or,  is  not]  his 
valid  last  will  and  testament  and  codicil. 

[Add  any  order  as  to  costs.] 


CHAPTER  XVI. 

TO  CURE  CERTAIN  DEFECTS,  ERRORS,  AND  OMISSIONS. 

528.  (Sec.  5871.)     Decree  correcting  error  in  a  written  instra.- 
ment,  icJdch  is  not  in  conformity  to  law. 
[  Title.] 

Now  came  the  petitioner  herein,  by  his  attorney,  and  there- 
upon his  petition  came  on  to  be  heard,  and  due  legal  notice  of 


-5877.]  TO    PERPETUATE    TESTIMONY.  287 

the  application  herein  having  been  given  [^or,  in  other  cases,  all 
parties  interested  being  before  the  court],  the  court,  on  the 
petition  and  evidence,  find  that  there  has  been  an  error  [or, 
omission ;  or,  defect]  inadvertently  made  in  [specify  the  in- 
strument of  ivriting],  as  set  forth  in  said  petition,  whereby  said 
[mime  instrument']  is  not  in  strict  conformity  with  the  laws  of 
the  state,  and  good  cause  being  shown  why  an  order  correct- 
ing said  eri-or  should  be  made,  the  same  is  hereby  allowed, 
and  the  said  [irrittcn  instrament]  is  corrected  as  follows: 
[spccifij'],  which  the  court  finds  to  have  been  the  true  and 
manifest  intention  of  the  parties. 

It  is  accordingly  ordered  and  adjudged  that,  \\\)0\\  the  filing 
of  this  oi'doi",  as  required  by  law,  the  said  [written  instriunent'\ 
have  full  force  and  efl'cct,  as  if  no  such  error  [or,  omission; 
or,  defect]  had  ever  existed. 

And  it  is  ordered  that  the jiay  the  costs  of  this  pro- 
ceeding, and  execution  is  awarded. 


CHAPTER  XVir. 
TO  PERPETUATE  TESTIMONY. 

529.  (Sec.  5875.)     Order  allowing  examination  of  witnesses. 

530.  (Sec.  5878.)     Final  onler  of  approval. 

529.  (Sec.  5875.^     Order  allowinq  examination  of  witnesses. 

[Title.] 

Now  comes  the  said  A.  B.,  by  his  attorney,  and  thereupon 
his  petition  for  the  examination  of  certain  witnesses  coming 
on  to  be  heard,  the  court,  on  consideration  of  the  premises, 
grant  the  prayer  of  the  same,  and  allow  the  examination 
of  the  said  M.  P.,  L.  T.,  and  C.  G.,  witnesses  as  aforesaid, 
u}»on  the  written  interrogatories  in  the  petition  set  forth; 

and  order  that  the  same  be  had  at  the  ofiice  of  ,  on  the 

day  of ,  commencing  at  10  o'clock  a.  m.  [before 

G.  K.,  Esq.,  who  is  hereby  specially  authorized  to  make  the 


288  JOURNAL    ENTRIES.  [SEC.  5878- 

same]  ;^  and  that  said  deposition,  when  so  taken,  be  returned 
to  the  ofl&ce  of  the  clerk  of  this  court. 

f  It  is  further  ordered  that  all  parties  interested  have 

days'  notice  of  such  time  and  place  served  personally  upon 
them. 

Or  say,  by  virtue  of  section  5876  :] 

f  And  it  appearing  that  the  parties  interested  can  not  be 
personally  notified  of  said  examination,  the  court  hereby  ap- 
point C.  G.,  an  attorney  of  this  court,  on  their  behalf,  to  ex- 
amine the  petition,  and  prepare  and  file  cross-interrogatories 
to  those  contained  therein,  on  which  the  said  witnesses  shall 
also  be  examined. 

530.  (Sec.  5878.)     Final  order  of  apj^roval. 

[Title.'] 

Now  comes  the  petitioner  herein,  by  his  attorney,  and  the 
depositions  heretofore  ordered  being  produced  to  the  court, 
and  the  court  being  satisfied  that  the  same  have  been  prop- 
erly taken,  as  in  said  order  required,  and  according  to  law, 
do  approve  the  same,  and  order  said  depositions  to  be  filed 
with  the  clerk  of  this  court. 

And  the  court  allow  a  fee  of  dollars  to  C.  G.,  Esq., 

for  his  services  herein,  to  be  taxed  with  the  costs  of  this 
case.  For  all  of  which  costs  execution  against  the  petitioner 
is  awarded. 


CHAPTER  XIX. 

WRECKMA8TERS. 

5.')1.  (Sec.  5895.)     Order  appointing  commissioner  of  wrecks. 
532.  (Sec.  5S96.)     Order  laying  off  districts  in  county. 

531.  (Sec.  5895.)     Order  appointing  commissioner  of  wrecks. 
In  the  matter  of  the  appointment  ^ 

of  A.  B.  as   commissioner  of  V 

wrecks.  j 

It  is  hereby  ordered  by  the   court  that  A.  B.  be,  and  he 

^  See  sec.  5877.     If  to  be  taken  before  a  regular  oflficer  authorized  to  take 
depositions,  this  order  need  not  be  inserted. 


-5912.]  WRECKMASTERS.  289 

is,  appointed  commissioner  of  wrecks  for  the  county  of 


[oVf  for  district  No.  —  of  the   county  of ],  for  the  term 

of years.     And  that  his  bond  be  fixed  at  $ . 

And  now  comes  tlie  said  A,  B.,  and  is  duly  sworn,  and 
gives  bond  as  aforesaid  to  the  State  of  Ohio,  with  G.  II.  and 
L.  M.  as  sureties  to  the  approval  of  the  court. 

532.  (Sec.  5896.)     Order  laying  of  districts  in  county. 
In  the  matter  of  laying  oflf  w^reck  1 
districts  in county.  J 

It  is  hereby,  for  good  cause,  ordered  by  the  court  that  the 

county  of be,  and  it  hereby  is,  divided  into wreck 

districts,  as  follows,  to  wit:  One  district  is  hereby  laid  off 
[specify  boundaries'],  which  said  district  shall  be  designated  and 
known  as  district  No.  1.  One  district  is  hereby  laid  off 
[specify  boundaries'],  which  said  district  shall  be  designated  and 
known  as  District  No.  2,  etc. 


290 


JOURNAL    ENTRIES. 


[sec.  5913- 


TITLE  II. 

PROCEDURE  m  PROBATE  COURT. 

Chap.  I.  Wills. 

II.  Executors  and  administrators. 

III.  Guardians  and  trustees. 

IV.  Insolvent  debtors. 
VII.  General  provisions. 

VIII.  Appropriation  of  property. 


CHAPTER  I. 


533.  (Sec.  5921. 

534.  (Sec.  5921. 

535.  (Sec.  5921. 

536.  (Sec.  5924. 

537.  (Sec.  5924. 

538.  (Sec.  5924. 

539.  (Sec.  5926. 

539a.(Sec.  5927. 

540.  (Sec.  5928. 

541.  (Sec.  5928. 

542.  (Sec.  5929. 

543.  (Sec.  5929. 

544.  (Sec.  5929. 

545.  (Sec.  5929. 

546.  (Sec.  5932. 

547.  (Sec.  5934. 

548.  (Sec.  5934. 


WILLS. 

Citation  for  production  of  will. 

Order  for  warrant  or  attachment,  in  first  instance. 

Order  for  warrant  or  attachment  when  citation  is  dis- 
obeyed. 

Will  produced  in  obedience  to  citation,  or  on  attach- 
ment. 

Order  for  imprisonment  of  person  refusing  to  produce 
will. 

Will  produced  and  prisoner  discharged. 

Testimony  of  one  witness  taken  on  will  being  presented 
for  probate. 

Testimony  taken  as  to  signature  of  witness,  in  case  of 
death,  etc. 

Commission  to  take  testimony  of  witness. 

Same — after  one  witness  sworn. 

Will  admitted  to  probate. 

Will  admitted  to  probate  when  last  witness  comes. 

Will  admitted  to  probate  when  commission  is  returned, 
other  witness  having  been  pi-eviously  examined. 

Commission  to  examine  witness  returned,  other  witness 
examined  and  will  admitted  to  probate. 

Authenticated  copy  of  will  from  another  county  of  Ohio 
admitted  to  record. 

Refusal  to  admit  will  to  probate. 

Notice  of  appeal  from  order  refusing. 


-5921,]  WILLS.  291 

549.  (Sec.  59.37.)     Authenticated   copy    of  will   from   another   state   ad- 

mitted to  record. 

550.  (Sec.  5937.)     Order  that  co[)y,  etc.,  be  filed  and  recorded. 

550a.  (Sec.  5939.)     Publication  ordered,  on  foreign  will  being  presented, 
and  case  continued. 

551.  (Sees.  5940.)     Foreign  will  admitted  to  record. 

Sl'OI,I.\TKl>  WIM.S — 

552.  (Sees.  5944—8.)     Spoliated  will  admittea  to  probate. 

553.  (.Sec.  5949.)     Authenticated  copies  admitted  to  record — when  record 

of  will  destroyed. 

554.  (Sec.  59G3.)     Citation  for  widow  i.ssued. 

Er.i:cTioN'  of  widow — 

555.  (Sec.  5964).  Election  of  widow  to  take  under  will. 

556.  (.Sec.  5964.)  Election  of  widow  not  to  take  under  will. 

557.  (Sec.  5965.)  Commission  issued  to  take  election. 

558.  (.Sec.  5965.)  Entry  on  return  made  by  commissioner. 

559.  (Sec.  5966.)  When  widow  unable  to  make  election,  etc. 

560.  (.Sec.  5966.)  Election  for  insane  or  imbecile  widow  entered  by  the 

court. 

TesTA.MKNTAUV    'IKUSTKKS 

561.  (Sec.  5981.)  Letters  of  trusteeship  under  will. 

562.  (Sec.  5983.)  New  trustee  appointed. 

563.  (Sec.  5988  )  Trustee  of  foreign  will  authorized  to  execute  trust,  etc. 

564.  (.Sec.  59S9.)  Trustee  appointed  by  a  foreign  court  authorized  to  exe- 

cute trust,  etc. 
56.").  (,Soc.  5990.)     Trustee  under  foreign  will  appointed. 

633.  (Sec.  5921.)     Citation  for  pro<luctio?i  of  loill. 

[Title.'] 

It  being  represented  to  the  court  by  "\V.  R.,  executor  of 
N.  I\.,  deceased  [or  by  any  other  interested  'person'].,  that  the 
last  will  of  the  said  X.  R.  is  in  the  custody  of  one  C.  S.,  who 
has  failed  to  produce  it  to  this  court,  *  it  is  now  there- 
fore ordered,  on  motion  of  the  said  W.  R.,  that  a  citation 
issue  to  said  C.  S.  for  him  to  produce  said  will,  if  in  his  cus- 
tody, before  this  court  at  once  for  the  purpose  of  its  being 

proved,  or  to  show  cause  on  the  day  of ,  18 — ,  at 

o'clock,  before  this  court,  why  he  fails  to  do  so. 

534.  (Sec.  5921.)     Order  for  irarrant  or  attachment  in  first  in- 
stance. 
[Title.] 
As  in  last  to^,  and  conti?iue :] — and  it  further  appearing 


292  JOURNAL    ENTRIES.  [SEC.  5921- 

from  the  affidavit  of  the  said  W.  R.  [o?'  otherwise']  that  [state 
cause  of  arrest],  it  is  ordered  that  a  warrant  [or,  attachment] 
issue  to  the  sheriff  of  this  county  [or  of  any  other  in  the  state], 
commanding  him  to  arrest  the  said  C.  S.,  and  bring  him  be- 
fore this  court,  on  the day  of ,  18 — ,  at  10  o'clock 

A.  M.,  to  show  cause  why  said  will  has  not  been  produced  for 
the  purpose  of  being  proved. 

535.  (Sec.  5921.)     Order  for  warrant  or  attachment  when  cita- 

tion is  disobeyed. 

[Title.] 

The  said  C.  S.  having  been  duly  served  with  the  citation 
heretofore  issued  by  this  court,  and  having  failed  to  obey 
the  command  thereof,  it  is  ordered  that  a  warrant  [or,  attach^ 
ment]  issue  to  the  sheriff  of  this  county,  commanding  him  to 
arrest  the  said  C.  S.,  and  bring  him  before  this  court  on  the 

day  of ,  18 — ,  at  10  o'clock  a.  m.,  to  answer  for  this 

his  said  refusal  and  neglect,  and  to  show  cause  as  required 
in  the  citation. 

536.  (Sec.  5924.)      Will  produced  in  obedience  to  citation,  or  on 

attachment. 

[Title.] 

This  day  came  the  said  C.  S.,  in  obedience  to  the  citation 
issued  for  him  [or,  in  custody  of  the  sheriff"],  and  produced 
the  will  of  the  said  N.  R.  for  probate,  and  thereupon  he  was 
discharged  from  further  answering  in  this  proceeding. 

537.  (Sec.  5924.^      Order  for  imprisonment  of  person  refusing 

to  produce  auU. 

[Title.] 

This  day  came  the  said  C.  S.,  in  obedience  to  the  citation 
issued  foi  him  [or,  in  custody  of  the  sheriff'],  and  was  ex- 
amined concerning  his  refusal  to  produce  the  will  of  the  said 
N.  R.  for  probate,  and  after  full  consideration  the  court  find 
that  he  has  been,  and  still  is,  guilty  of  so  refusing  witluMit 
reasonable  cause  ;  and  therefore  it  is  ordered  that  the  said 
C.  S.  be  committed  to  the  jail  of  this  county,  there  to  be 
kept  in  close  custody  until  he  sliall  produce  said  will. 


-5928.]  WILLS.  293 

538.  (Sec.  5924.)      Will  produced,  and  prisoner  discharged. 

This  day  came  the  said  C.  S.,  in  custodv  of  the  sheriff",  and 
produced  the  will  of  the  said  N.  R.,  deceased,  to  this  court 
for  probate,  and  was  thereupon  discharged  from  imprison- 
ment. 

530.  (Sec.  5920.)     Testimony  of  one  witness  taken  on  will  being 
presented  for  probate, 
[ntle.] 

The  last  will  and  testament  of  L.  D.,  late  of  this  county, 
deceased,  was  this  day  [>resented  to  the  court  for  probate  and 
record,  and  it  ai>peai'iiii^  to  the  court  that  the  widow  [o/-.  hus- 
band] of  said  decedent  and  all  the  next  of  kin  [or,  that  the 
said  decedent  died  leaving  no  widow  (or,  husband)  surviving, 
and  that  all  the  next  of  kin  of  said  decedent],  residents  of 
Ohio,  have  been  duly  notified  of  the  presentation  of  said  will 
for  probate,^  thereupon  II.  L.,  one  of  the  subscribing  w\t- 
nesses  to  said  will  appeared  in  open  court,  and  was  duly  sworn 
and  examined  according  to  law.  and  his  testimony  therein 
was  reduced  to  writing  and  filed.* 

539r«.  (Sec.  5927.)      TcsfiNion;/  taken  as  to  signature  in  case  of 

death  or  absence  of  witness. 
[Title.'] 

In  place  of  recording  the  examination  of  a  witness,  substitute 
asfol/oirs:'] — 

And  it  appearing  tliat  F.  L.,  one  of  the  subscribing  wit- 
nesses to  said  will,  is  now  deceased  [or,  has  gone  to  parts  un- 
known, or,  has  become  incompetent  to  testity],  thereupon  H. 
L.  and  R.  L.  ap}»eared  in  open  court,  and  were  duly  sworn 
and  examined  according  to  law  touching  the  genuineness  of 
the  signature  of  said  F.  L.,  attached  to  said  will,  and  their 
testimony  thereon  was  reduced  to  writing  and  filed. 

540.  (Sec.  5928.)     Commission  to  fake  testimony  of  witness. 

[Title.] 

The  last  will  and  testament  of  L.  D.,  late  of  this  county, 
deceased,  having  been  presented  to  the  court  for  probate 
and  record,   and  it  appearing  that  II.  L.,  one   of  the   sub- 

^  Required  by  sec.  5719. 


294  JOURNAL    ENTRIES.  [SEC.  5928- 

scribing  witnesses  to  said  will,  is  a  resident  of  Lexington, 
Kentucky,  and  is  without  the  jurisdiction  of  this  court,  it  is 
therefore  ordered  that  a  commission,  with  the  will  annexed, 
issue  herein  to  R.  M.,  of  Lexington,  Kentucky,  directing  him 
to  take  the  deposition  of  said  subscribing  witness,  and  re- 
turn the  same,  duly  certified,  with  all  convenient  speed  to 
this  court. 

A  similar  entry  may  be  made  in  case  the  witness  is  infirm  or  feeble, 
and  unable  to  attend  court. 

541.  (Sec.  5928.)      Commission  to  take  testimony  of  witness  after 

one  sworn. 
[ntle.] 

As  in  Entry  No.  539,  to  the  end,  and  continue:'] — 
And  it  appearing  to  the  court  that  M.  D.,  the  other  sub- 
scribing witness  to  said  will,  is  a  resident  of  Lidianapolis, 
Indiana,  and  is  without  tlie  jurisdiction  of  this  court,  it  Is 
thereupon  ordered  that  a  commission,  with  the  will  annexed, 
issue  herein  to  R.  M.,  of  Indianapolis,  Indiana,  directing  him 
to  take  the  testimony  of  said  subscribing  witness,  and  return 
the  same,  according  to  law,  with  all  convenient  speed,  to  this 
court. 

542.  (Sec.  5929.)      Will  admitted  to  jirobate. 
[Title.'] 

The  last  will  and  testament  of  A.  T.,  deceased,  late  of  this 
county,  was  this  day  presented  to  the  court  for  probate  and 
record,  and  it  appearing  to  the  court  that  the  widow  [or,  hus- 
band] of  said  decedent  and  all  the  next  of  kin  [or,  that  the 
said  decedent  died  leaving  his  widow  [or,  husband]  surviving, 
and  that  all  of  the  next  of  kin  of  said  decedent],  residents  of 
Oiiio,  have  been  duly  notified  of  the  presentation  of  said  will 
for  probate  ;^  thereupon  J.  B.  and  T.  D.,  subscribing  witnesses 
to  said  will,  appeared  in  open  court,  and  were  duly  sworn  and 
examined  according  to  law,  and  their  testimony  thereon  was 
reduced  to  writing  and  filed. [j]- 

And  it  appearing  to  the  court  from  the  testimony  so  taken 
that  *  the  said  will  was  duly  executed  and  attested,  and  that 

^  Required  by  sec.  5719. 
^  By  sec.  5920. 


-5929.]  WILLS.  295 

at  the  time  of  executing  the  same  the  testator  was  of  full  age 
and  of  sound  mind  and  memory,  and  not  under  any  restraint, 
the  court  now  admit  the  said  will  to  probate,  and  order  the 
same,  together  with  the  testimony  so  taken,  to  be  recorded 
according  to  the  statute  in  such  cases  made  and  provided. 

543.  (Sec.  5929.)      Will  admitted  to  -probate  lohen  last  loitness 

comes. 

[TUle.-] 

This  day  came  P.  I>.,  the  other  subscribing  witness  to  said 
Avill  of  L.  T>.,  deceased,  in  open  court,  and  was  duly  sworn 
and  examined  according  to  law,  and  his  testimony  therein 
was  reduced  to  writing  and  tiled.' 

And  it  appearing  to  the  court  from  the  testimony  so  taken 
and  from  the  testimony  of  the  former  witness  that  \_covclude 
as  from  *  in  last  entry]. 

544.  (Sec.  5929.)      Will  admitted  to  probate  when  commission  is 

returned.  (Other  ivitness  Jiaving  been  pre- 
viously examined.) 

[Title.-] 

The  commission  heretofore  issued  herein  to  take  the  testi- 
mony of  M.  D.,  one  of  the  subscribing  witnesses  to  the  will 
of  said  L.  D.,  deceased,  was  this  day  returned  duly  executed, 
and  the  same  was  filed  herein. 

And  it  appearing  to  the  court  from  the  examination  of  the 
former  witness  and  from  the  deposition  of  the  said  M.  D. 
that  [conclude  as  from  *  //;  Entry  Ko.  542]. 

545.  (Sec.  5929.)     Commission    to    examine    v'itness  returned, 

other  witness  examined,  and  ivill  admitted 
to  probate. 
[Title.] 

The, commission  heretofore  issued  herein  to  take  the  testi- 
mony of  II.  L.,  one  of  the  subscribing  witnesses  to  the  will 
of  said  L.  D.,  deceased,  was  this  day  returned  duly  executed. 
And  it  appearing  to  the  court  that  the  widow  [or,  husband] 
of  said  decedent  and  [or,  that  said  decedent  died  leaving  no 

»  By  sec.  5926. 


29Q  JOURNAL   ENTRIES.  [SEC.  5930- 

widow  (or,  husband)  surviving,  and  that]  all  the  next  of  kin, 
residents  of  Ohio,  have  been  duly  notified  of  the  presenta- 
tation  of  said  will  for  probate,  thereupon  this  day  came  P. 
B.,  the  other  subscribing  witness  to  said  will,  in  open  court, 
and  was  duly  sworn  and  examined  according  to  law,  and  his 
testimony  was  reduced  to  writing  and  filed. 

And  it  appearing  to  the  court  from  the  testimony  so  taken 
that  [conclude  as  from  *  !n  Entry  No.  542]. 

546.  (Sec.  5932.)     Auihcnticated  copy  of  wdlfrom  another  county 

of  Ohio  admitted,  to  record. 

[TUle?^ 

An  authenticated  copy  of  the  last  will  and  testament  of  E. 

C,  late  of  county,  Ohio,  deceased,  and  of  the  order  of 

probate  of  the  same,  in  said  county,  were  this  day  presented 
to  this  court  for  record.  Whereupon  the  court,  finding  that 
certain  real  estate  devised  by  said  will  is  situated  in  this 
county,  hereby  admits  said  copies  to  record,  as  provided  by 
law  in  such  cases. 

547.  (Sec.  5934.)     Refusal  to  admd  icdl  to  lyrohate. 
[Tdle.-] 

As  in  No.  542,  to  [f],  and  continue :] — 

And  the  testimony  of  sundry  other  witnesses  being  taken, 
and  it  appearing  from  the  testimony  that  at  the  time  of  exe- 
cuting said  will  the  testator  was  not  of  sound  mind  and 
memory,  the  court  refuse  to  admit  said  will  to  probate. 

And  now  comes  S.  R.,  and  gives  notice  of  his  intention  to 
appeal  from  this  decision  to  the  court  of  common  pleas. 

Or  the  notice  of  appeal  may  be  by  a  separate  entry,  as  follows : 

548.  (Sec.  5934.)     Notice  of  appeal  from  order  refusing. 
I  Title.] 

Now  comes  S.  R.,  and  gives  notice  of  his  intention  to 
appeal  to  the  court  of  common  pleas  from  the  decision  of 
the  court  in  refusing  to  admit  to  probate  the  will  of  L.  M., 
deceased. 

Sec.  5935.  For  the  judgment  of  the  common  pleas  court  on  appeal, 
see  Entries  Nos.  889  and  890. 


-5930.]  WILLS.  297 

549.  (Sec.  5937.)     Aitthevfkatcd  copy  of  will  from  another  state 

admitted  to  record. 

[Title.'] 

An  authenticated  copy  of  the  hist  will  and  testament  of  J. 
M.,  deceased,  late  of  Dearborn  county,  Indiana,  was  this  day 
presented  to  this  court  for  record  ;  whereupon  the  court  bein<^ 
satisfied  on  exaniiiuition  tliat  said  will  was  duly  executed  and 
prox'c'd  according"  to  the  laws  of  the  State  of  Indiana,  and 
{)art  of  the  property  by  said  will  devised  being  situated  in 
this  county,  said  copy  is  hereby  admitted  to  record  in  this 
court,  according  to  law. 

550.  (Sec.  5937.)     Order  that  copy  of  recorded  will  {executed 

and  proved  in  another  state  and  recorded, 
as  in  last  entry  in  one  county  of  Ohio)  be 
filed  and  recorded. 
[Title.] 

A  paper  writing,  purporting  and  claimed  to  be  a  copy  of 
the  last  will  and  testament  of  J.  M.,  deceased,  late  of  Dear- 
born county,  Indiana,  with  a  copy  of  an  order  to  record  the 

same  in county,  Ohio,  annexed  thereto,  certified  l)y  the 

prol)ate  judge  of  said  county  of ,  under  the  seal  of  his 

court,  were  this  day  presented  for  record  ;  whereupon,  it 
appearing  that  part  of  the  property  devised  by  said  will  is 
situated  in  this  county,  it  is  ordered  that  said  certified  copies 
of  will  and  order  for  record  hQ  filed  and  recorded  in  this 
court  according  to  law. 

550a.  (Sec.  5039.)     Publication    ordered,  on  foreign  will  being 
presented,  and  case  continued. 
[Title.] 

This  day  came  R.  S.,  and  produced  to  the  court  a  paper 
writing,  purporting  to  be  the  last  will  and  testament  of  J.  R., 
late  of  London,  England,  deceased,  and  of  the  probate  tliere- 
of,  and  made  application  for  admission  of  the  same  to  pro- 
bate in  this  county;  and  thereupon  it  is  ordered  by  the  court 
that  publication  be  made  as  provided  by  law,  and  the  motion 
to  admit  to  record  is  continued  for  the  term  of  two  months. 


298  JOURNAL   ENTRIES.  [SEC.   5940 

551.  (Sees.  5940.)     Foreign  will  admitted  to  record. 
[Title.'] 

A  copy  of  the  will  of  J.  R.,  deceased,  late  of  London^ 
England,  and  the  probate  thereof  duly  authenticated,  hav- 
ing been  heretofore  presented  for  record  by  R.  S.,  the  execu- 
tor under  said  will,  and  due  notice  of  such  application  hav- 
ing been  given  by  publication  in  the  Cincinnati  Daily  Ga- 
zette., a  public  newspaper  printed  [or,  of  general  circulation] 
in  this  county,  according  to  law,  which  publication  is  hereby 
approved;  and  it  appearing  to  the  court  that  said  will  was 
executed,  proved,  and  allowed  in  said  city  of  London,  ac- 
cording to  the  laws  of  England,  that  there  is  an  estate  in 
this  county  upon  which  said  will  may  operate,  and  that  said 
instrument  ought  to  be  allowed  in  this  state,  the  court  now 
order  that  said  copy  be  filed  and  recorded  in  this  county  as 
provided  by  law. 

Sec.  5941.  For  entry  granting  letters  [testamentary  under  any  of 
the  wills,  admitted  as  above,  modify  Entry  No.  566.  For  entry  grant- 
ing letters  of  administration,  with  the  will  annexed,  see  Entry  No. 
571. 

Spoliated  wills — 

552.  (Sees.  5944-8.)     Spoliated  xoill  admitted  to  probate. 

[nth:] 

This  day  came  J.  M.  W.  before  this  court  for  the  purpose 
of  proving  the  execution  and  contents  of  the  last  will  and 
testament  of  S.  R.,  late  of  Hamilton  county,  deceased.  And 
it  appearing  to  the  court  that  due  notice  has  been  given  to  all 
persons  interested  in  said  will,  who  reside  in  said  county  of 
Hamilton,  thereupon  J.  B.  and  T.  D.,  subscribing  witnesses 
to  said  will,  and  also  other  witnesses,  viz.,  P.  M.  and  D.  R., 
appeared  in  open  court,  and  were  duly  sworn  and  examined 
touching  the  execution  and  contents  of  said  will,  and  their 
testimony  thereon  was  reduced  to  writing  and  filed. 

And  the  court  being  satisfied  from  the  testimony  so  taken 

that  the  said  S.  R.  did,  on  the day  of ,  18 — ,  duly 

execute  his  last  will  and  testament,  in  the  mode  provided  by 
the  law  in  force  at  the  time  of  its  execution,  and  that  said  will 
was  not  revoked  by  said  testator,  but  that  it  has  been  lost 


5964]  WILLS.  299 

[or,  spoliated,  or,  destroyed]  subsequent  to  the  death  of  said 
testator,  the  court  finds  and  does  hereby  establish  the  con- 
tents of  said  will  to  have  been,  as  near  as  can  be  ascertained, 
as  follows,  to  wit  [set  out  in  fuW]. 

And  the  court  further  orders  that  said  will  and  testimony 
be  recorded  as  in  case  of  other  wills  admitted  to  probate. 

Sec  5940.  The  commission  to  take  testimony  may  be  the  same 
as  ill  othei-  cases.     Modify  entry  No.  .540. 

If  tlie  will  was  lost  alter  being  admitted  to  probate,  but  before  it 
was  recorded,  as  provided  in  sec.  5947,  as  amended  80  O  L.  24,  the 
last  entry  will  i-cadily  be  modified  to  suit  the  case. 

553.  (Sec.  .j940.)     Authenticated  copies  admitted  to  record,  when 

record  of  will  has  been  destroyed. 

[Title.] 

A  copy  of  the  last   will   and   testament  of  J.  M.,  late  of 

county,  deceased,  and   of  the  [irobate  thereof,   certitied 

under  the  hand  and  seal  of  the  probate  judge  of  said  county 

of to  be  a  true  copy  of  tlie  original  will  and  the  probate 

thereof,  was  this  day  presented  for  record  ;  and,  thereupon^ 
it  being  made  to  appear  to  the  satisfaction  of  the  court  that 
the  record  of  said  original  will  has  been  destroyed,  the  court 
orders  that  said  copy  be  recorded  in  this  county  according  to 
law. 

Sec.  5951.  For  entry  of  co])v  of  will  alone  admitted  to  record, 
after  record  destroyed,  use  last  entry,  omitting  the  words  relating 
to  probate  of  will. 

Election  of  widow. 

554.  Sec.  5963;  S6  v.  187.     Citation  for  widow^  issued. 
[Tdlc.'\ 

It  is  ordered  by  the  court  that  a  citation  of  issue  for  C.  X., 
widow  of  E.  X.,  deceased,  late  of  this  county,  to  appear  be- 
fore this  court  and  make  her  election  whether  she  will  take 
under  the  provision  of  the  w^ill  of  her  late  husband,  or  be 
endowed  of  the  lands  of  her  said  husband,  and  take  her  dis- 
tributive share  of  the  personal  estate. 

555.  (Sec.  5964.)     Election  of  ividow^  to  take  under  u-ill. 
[Title]. 

This  day  personally  appeared  in  open  court  C.  X.,  widow 

1  By  amendment  of  April  3,  1889,  86  v.  187.  sees.  5963-5966  inclusive,  are 
made  equally  applicable  to  a  widower.  In  which  cases  modify  entries  accord- 
ingly- 


300  JOURNAL    ENTRIES.  [SEC.  5964- 

of  E.  iST.,  deceased,  and  made  known  therein  her  election  to 
take  under  the  provision  of  the  will  of  her  said  deceased 
husband,  "^''hereupon  the  court  explained  to  her  the  pro- 
vision of  said  will  and  her  rights  under  it,  also  her  rights 
under  the  law,  and  she  declared  herself  satisfied  with  the 
provisions  of  said  will,  and  asked  that  her  election  to  take 
under  said  will  might  be  entered  upon  the  journal  of  the 
court,  which  is  accordingly  done. 

556.  (Sec.  5964.)     Election  of  widow^not  to  take  under  ivilL 
[Tilde.] 

This  day  personally  appeared  in  open  court  C.  N.,  wiaow 
of  E.  ]Sr.,  deceased,  and  after  the  court  had  explained  to  her 
the  provisions  of  the  will  of  her  said  deceased  husband  and 
her  rights  under  it,  also  her  rights  under  the  law,  made 
known  her  election  not  to  take  under  said  will. 

The  last  entry  is  not  absolutely  necessary,  as  a  failure  to  elect  to 
take  under  the  will  is  construed  to  be  an  election  not  so  to  take. 

557.  (Sec.  5965.)     Commission  issued  to  take  election  of  vAdoio,^ 

etc. 

[Title.'] 

On  application  made  in  behalf  of  C.  X.,  widow  of  E.  X., 
deceased,  and  it  appearing  that  she  is  by  reason  of  ill-health 
[or,  not  being  a  resident  of  this  county]  unable  to  appear  in 
court,  it  is  ordered  that  a  commission,  with  a  copy  of  the  will 
annexed,  be  issued,  directed  to  W.  C,  to  take  the  election  of 
said  widow  to  accept  the  provisions  of  the  will  of  her  said 
deceased  husband,  and  to  explain  to  her  her  rights  under  the 
will  and  by  law. 

And  the  said  AV.  C.  is  directed  to  return  his  proceedings 
to  this  court. 

558.  (Sec.  5965.)     E)d_ry  on  return  made  by  commissioner. 
[Title.] 

The  commission  to  take  the  election  of  C.  X.,  widow^  of  E. 
X.,  deceased,  under  the  will  of  her  said  husband,  deceased, 
was  this  day  duly  executed  and  filed.  And  by  said  return  it  is 
shown  that'^the  said  widow  elects  to  take  under  the  said  will. 


^Same  provision  relates  also  to  widower.    See  note,  p.  299. 


-5085.]  WILLS.  301 

559.  (Sec.  5966.)      W hen  loidoiv^  is  unable  to  make  an  election, 

person  appointed  to  ascertain  value  of  pro, 
vision  nvide  by  irill. 

[Title.] 

It  a[)peanng  to  tlic  court  tliat  C.  X.,  widow  of  E.  X.,  de- 
ceased, late  of  this  county,  is  uiuible  to  make  an  election  un- 
der the  will  of  lier  said  husband,  deceased,  by  reason  of  her 
insanity  [or,  imbecility  of  mind],  J.  11.  is  hereby  appointed 
])y  till'  court  to  ascertain  the  value  of  the  provision  made  by 
the  said  E.  X.  in  his  will  for  the  said  C.  X.,  and  also  the  value 
of  her  rights  by  law  in  the  estate  of  the  said  E.  N.,  and  to 
report  the  same  to  this  court. 

560.  (Sec.  5966.)     Election  for  insane  or  imbecile  loidoio^ enterea 

by  the  court. 

[ntle.'] 

The  report  of  J.  II.,  having  been  tiled,  showing  the  value 
of  the  provision  made  by  E.  X.,  deceased,  in  his  will  for  C. 
X.,  his  widow,  and  also  the  value  of  her  interest  by  law  in 
the  estate  of  the  said  E.  X.,  deceased,  the  court,  being  satis- 
fied that  the  provision  of  said  will  is  more  valuable  and  bet- 
ter for  her  than  the  provision  by  law,  now  enters  an  election 
for  said  widow,  by  virtue  of  these  proceedings,  to  take  un- 
der the  said  will 

Testamentary  trustees — 

561.  (Sec.  5981.)     Letters  of  trusteeship  under  will. 
[Title.'] 

On  application,  the  court  grants  unto  R.  C.  letters  of  trus- 
teeship under  the  will  of  E.  S.,  deceased,  he  being  named  as 
such  trustee  in  the  will  of  said  decedent.  Whereupon  *  the 
said  Iv.  C.  now  accepts  said  appointment,  and  files  a  state- 
ment of  the  whole  estate  of  said  trust  created  by  said  will, 
and  presents  his  bond  as  such  trustee  in  the  sum  of dol- 
lars, with  R.  D.  B.  and  J.  W.  D.  as  sureties,  which  bond  is 
approved  by  the  court. 

562.  Sec.  5983.)     New  trustee  appointed. 
[Title.] 

R.  C,  the  trustee   named  in   the  will  of  C.  S.,  deceased, 

'  See  note,  p.  299. 

20 


302  JomaNAL  entries.  [sec.  5986- 

having  failed  to  qtialify  as  such,  the  court  now  appoints 
"W,  B.  as  such  trustee.  Whereupon  [conclude  as  from.  ^  in 
last  e^itryl. 

Sec.  5986.     Make  entry  similar  to  last. 

563.  (Sec.  5988.)      Trustee  of  foreign  will  authorized  to  execute- 

trust,  etc. 
[Title.] 
Modfij  Entry  No.  561. 

564.  (Sec.  5989.)      Trustee  appointed  by  a  foreign  court  author- 

ized to  execute  trust,  etc. 

[Title.] 

This  day  came  "VY.  H.,  and  presented  to  tne  court  an  au- 
thenticated record  of  his  appointment  as  trustee  under  the  will 

of  D.  F.,  late  of  Paris,  France,  by  the court  in  said  city, 

and  thereupon,  the  court  being  satisfied  that  said  appoint- 
ment was  duly  made,  and  that  certain  lands  affected  by  said 
will  are  situated  in  this  county,  grants  unto  the  said  W.  H. 
letters  of  trusteeshi}),  under  the  said  will,  for  the  execution 
of  the  trust  named  in  said  appointment.  And  thereupon 
the  said  W.  H.  presents  his  bond  as  such  trustee  in  the  sum 

of  $ ,  with  R.  J),  and  W.  C.  as  sureties,  which  is  approved 

by  the  court. 

565.  (Sec.  5990.)      Trustee  under  foreign  loill  appointed. 
[Title.] 

And  now  the  petition  herein  coming  on  to  be  heard,  and 
the  court  linding  that  by  the  will  of  the  said  C.  T.,  duly 
executed  and  proved  according  to  the  laws  of  England,  and 
admitted  to  record  in  this  state,  a  trust  is  created  concerning 
certain  lands  situated  in  this  county,  AY.  C.  B.  is  hereby  ap- 
pointed trustee  under  said  will  to  carry  into  effect  the  said 
trust. 

And  thereupon  the  said  W.  C.  B.  enters  into  an  undertak- 
ing as  such  trustee,  witli  R.  D.  and  B.  D.  as  sureties,  which  is 
approved  by  the  court. 


EXECUTORS    AND   ADMINISTRATORS. 


303 


CHAPTER  11. 


EXECUTORS  AND  ADMINISTRATORS. 


566. 

(Sec? 

.  5994, 

567. 

(Seci- 

.  5994, 

568. 

(Sees 

.  5994, 

569. 

(Sec. 

5994.) 

570. 

(Sec. 

6000,) 

571. 

(Sec. 

6000.) 

572. 

(Sec. 

6001.) 

573. 

(Sec. 

6001.) 

574. 

(Sec. 

6001.) 

575. 

(Sec. 

6007.) 

576. 

(Sec. 

6011.) 

577. 

(Sec. 

6011.) 

578. 

(Sec. 

6011.) 

579. 

(Sec. 

6013.) 

580. 

(Sec. 

6014.) 

581. 

(Sec. 

6015.) 

582. 

(Sec. 

6017.) 

583. 

(Sec. 

6018.) 

584. 

(Sec. 

6019.) 

585. 

(Sec. 

6022.) 

.'").)     Letters  testamentary  granted. 

5.)     Letters  of  administration  granted  to  widow  or  next 

of  kin. 
5.)     Letters  granted  to  other  than  widow  or  next  of  kin. 

Letters  granted  on  estate  of  intestate  dying  out  of  state. 

Letters  granted  when  one  of  two  or  more  named  in 
will  declines. 

Letters  of  administration,  with  the  will  annexed, 
granted  when  jaerson  named  in  will  as  sole  execu- 
tor declines. 

Admiiiisti'ation,  with  the  will  annexed,  granted  during 
minority  of  executor. 

Letters  testamentary  to  one,  when  other  executor  is 
under  age. 

Entry,  when  executor  named  in  last  entry  comes  of 
age. 

Special  administrator  appointed. 

Citation  against  si)ecial  administrator. 

Attachment  allowed  after  citation  disobeyed. 

Ortler  committing  to  jail. 

Administration  of  assets,  within  the  state,  of  Tion-resi- 
dent  gi'anted. 

Administration  granted  after  twenty  years. 

Resignation  of  e.\ecutor  or  administrator  accepted,  and 
administrator  ap]iointed. 

Executor  or  administrator  removed  and  new  adminis- 
trator appointed. 

Letters  of  administration,  dc  bonis  non,  granted  after 
death  of  executor  or  administrator. 

Administration  revoked  on  a  will  being  subsequently 
proved,  etc. 

Letters  granted  after  marriage  of  executrix  or  admin- 
istratrix. 


The  inventory,  the  allowance  to  the  widow  and  children,  and  the  debts 
due  the  estate  — 

586.  (Sec.  6028.)     Appraisement  dispensed  with. 

587.  (Sec.  6028.)     Appraisers  appointed. 

588.  (Sec.  6040.)     Appraisers  appointed  to  set  off  widow's  allowance. 

589.  (Sec.  6043.)     Allowance  to  widow  increased. 


304  JOURNAL    ENTRIES. 

590.  (Sec.  6047.)  Order  for  return  of  inventory. 

591.  (Sec.  6048.)  Attachment  allowed  on  failure  to  return  inventory. 

592.  (Sec.  6048.)  Order  committing  to  jail  until  inventory  be  returned. 

593.  (Sec.  6049.)  Letters  revoked  for  failure  to  return  inventory. 

594.  (Sec.  6053.)  Citation  allowed  against  person  concealing  assets. 

595.  (Sec.  6054.)  Order  committing  to  jail  on  refusal  to  answer,  etc. 

596.  (Sec.  6057.)  Judgment  against  person  found  guilty  of  concealing 

assets. 

597.  (Sec.  6061.)     Appraisers  appointed  for  property  discovered  after  in- 

ventory filed. 
598    (Sec.  6063.)    Time  for  settlement  by  executor  extended. 

599.  (Sec.  6073.)     Order  permitting  compounding  of  debt. 

Sale  of  personal  property,  Axn  the  sale  bill — 

600.  (Sec.  6074.)     Appraisement  and  sale  dispensed  with. 

601.  (Sec.  6074.)     Appraisement  and  sale  subsequently  ordered. 

602.  (Sec.  6076.)     Order  for  private  sale. 

603.  (Sec.  6076.)     Same — at  less  than  appraised  value. 

604.  (Sec.  6076.)     Public  sale  directed  on  failure  to  sell  at  private  sale. 

605.  (Sees.  6077,  8.)     Compounding  of  desperate  claim  authorized. 

606.  (Sec.  6077.)     Sale  of  desperate  claim  at  public  sale  authorized, 

607.  (Sec.  6077.)     Private  sale  of  desperate  claim  ordered. 

608.  (Sec.  6077.)     Order  that  desperate  claim  be  filed,  etc. 

609.  Sale  of  personal  property  confirmed. 

The  notice  to  creditors,  the  authentication  and  paymknt  of  debts,  and 

PAY.MENT  OF  legacies — 

610.  (Sec.  6093.)  Referees  approved  of. 

611.  (Sec.  6096.)  Report  of  referees  in  arbitration  confirmed,  etc. 

612.  (Sec.  6096.)  .Judgment  against  claim  on  report  of  referees. 

613.  (Sec.  6096.)  Report  set  aside  and  new  referees  appointed. 

Executor's  or  administrator'.s  claim  against  the  estate  he  represents— 

614.  (Sec.  6100.)  Order  that  notice  of  hearing  be  given. 

615.  (Sec.  6101.)  Claim  allowed. 

616.  (Sec.  6105.)  Execution  against  executor  allowed. 

617.  (Sec.  6107.)  .Judgment  of  waste  against  executor. 

618.  (Sec.  6107.)  Same — when  amount  can  not  be  ascertained. 

619.  (Sec.  6115.)  Order  for  payment  of  claim  on  which  right  of  action 

will  not  accrue  for  four  years. 

620.  (Sec.  6115.)     Order  that  administrator  retain  money  to  pay  same. 

621.  (Sec.  6115.)     Order  that  bond  be  taken  by  owner  of  such  claim. 

622.  (Sec.  6126.)     Allowing   notice  of    appointment   of    executor   to  be 

given. 

623.  (Sec.  6128.)     Order  to  distribute,  etc.,  on  bond  being  given. 

624.  (.*~5ec.  6128.)     Same — without  bond  being  required. 


EXECUTORS    AND    ADMINISTRATORS.  305 

Foreign'  executors  and  administrators — 

625.  (Sec.  GI31.)     Order,  on  petition,  that  he  render  account. 

626.  (Sec.  6131.)     Order  distributing  amount  found  in  hands  of. 

Action  for  injcuy  ky  wiiongfl'l  death — 

627.  (Sec.  6135.)     Judgment  on  verdict. 

628.  (Sec.  6135.)     Order  that  administrator  settle  claim. 

Sale  of  real  estate  for  payment  of  debts,  and  distribution  of  proceeds — 
629    (Sec.  6146.)     Bond  approved  and  order  for  sale  not  granted. 

630.  (Sees.  6147  and  6153.)     Finding  sale  not  necessary. 

Where  there  is  no  dower  to  be  assigned — 

631.  (Sec.  6147.)     Sale  ordered  on  appraisement  in  the  inventory. 

632.  (Sec.  6147.)     New  appraisement  ordered. 

633.  (Sec.  6147.)     Appraisement  ordered,  in  case  widow  has  waived  dower 

by  metes  and  bounds. 

634.  (Sec.  6147.)     Appraisement  confirmed,  and  decree  for  sale. 

^V?lere  there  is  dower  to  he  assigned — 

635.  (Sec.  6155.)     Order  for  assignment  of  dower,  and  appraisement  of 

premises. 

636.  (Sec.  6155.)     Assignment,  by  metes  and  bounds,  and  appraisement 

confirmed,  and  decree  for  sale. 

637.  (Sec.  6155.)     Assignment  of  dower,  as  of  rents,  etc.,  and  appraisement 

confirmed,  and  decree  for  sale 
In  general — 

638.  (Sec.  6156.)     Order  substituting  appraiser. 

639.  (Sec.  6160.)     Order  directing  sale  for  certain  amount. 

640.  (Sec.  6160.)     Order  for  new  appraisement. 

Private  sale — 

641.  (Sec.  6161.)  Decree  for. 

642.  (Sec.  6161.)  Order  for,  after  appraisement  confirmed. 

643.  (Sec.  6161.)  Order  for,  on  report  of  offer  made 

Confirmation  of  sale  and  distribution  of  proceeds — 

644.  (Sec.  6162.)     Decree  for. 

645.  (Sec.  6162.)     Decree  for,  after  private  sale. 

646.  (Sec.  6162.)     Decree   for,  where   dower  by  metes   and   bounds   has 

been  waived. 
Misccllan  eo  us — 

647.  (Sec.  6166.)     Sale  of  equitable  interest  ordered. 

547a. (Sec.  6166.)     Sale  of  equitable  interest  confirmed,  and  order  of  dis- 
tribution. 

648.  (Sec.  6168.)     Copy  of  appointment  of  foreign  executor  filed. 


306  JOURNAL    ENTRIES. 

The  account  and  compensation  of  an  executor  or  administrator,  and  dis- 
tribution IN  certain  cases. 

649.  (Sec.  6175.)     Account  current  filed  and  suspended. 

650.  (Sec.  6175.)     Final  account  filed  and  suspended. 

651.  Account  allowed  and  confirmed,  and  order  of  distribution. 

652.  Suspended  account  allowed  and  confirmed. 

653.  Various  accounts  and  vouchers  allowed  and  confirmed. 

654.  Account  confirmed  on  exceptions  heard." 

655.  Account  disallowed. 

656.  Exceptions  withdrawn. 

657.  (Sec.  6186.)     Account  referred  to  special  commissioner. 

658.  (Sec.  6187.)     Order  opening  settled  account. 

659.  (Sec.  61 88.)     Allowance  for  expenses  and  special  services. 

660.  (Sec.  6189.)     Order  for  distribution  of  notes,  etc. 

661.  (Sec.  6190.)     .Account    of  payments  filed  and  allowed  as   final  dis» 

charge. 

662.  (Sec.  6191.)     Order  for  investment  of  unclaimed  money. 

663.  (Sec.  6192.)     Order  for  payment  to  distributee. 

664.  (Sec.  6195.)     Citation    issued  against   executor,  etc.,  failing   to   pay 

money. 

665.  (Sec.  6196.)     Order  for  publication  against  non-resident  executor,  etc. 

666.  (Sec.  6198.)     Amended  or  supplemental    petition   allowed,  making 

new  parties. 

667.  (Sec.  6198.)     Finding  and  order  on  submitted  question. 

668.  (Sec.  6198.)     Same— by  agreement. 

669.  (Sec.  6199.)     Order  reserving  case  to  common  pleas  court. 

670.  (Sec.  6202.)     Judgment  construing  any  matter  respecting  the  estate. 

The  ADMINISTRATION  bond;    sureties  in  ;    SUITS  ON  — 

671.  (Sec.  62U4.)  Order  releasing  surety. 

672.  (Sec.  6204.)  Administrator  removed  for  failing  to  give  new  bond. 

673.  (Sec.  6205.)  Bond  insufficient — new  one  required. 

674.  (Sec.  6208.)  Order  for  bond  of  indemnity. 

675.  (Sec.  6212.)  Leave  to  bring  suit  on  bond. 

Proceedings  when  the  estate  of  a  deceased  person  is  insolvent — 

676.  (^Sec.  6224.)     Commissioners  appointed. 

677.  (Sec.  6226.)     Further  time  allowed  to  commissioners. 

678.  (Sec.  6230.)     Order  allowing  or  disallowing  claim  on   appeal   from 

commissioners. 

679.  (Sec.  6231.)  Order,  on  petition,  allowing  appeal. 

680.  (Sec.  6232.)  Order  allowing  claim  on  appeal  in  last  entry. 

681.  (Sec.  6235.)  Order  of  distribution  on  report  of  commissioners. 

682.  (Sec.  6236.)  Estate  declared  probably  insolvent,  etc. 

683.  (Sec.  6243.)  Judgment  on  the  award  of  the  referees. 

684.  (Sec.  6243.)  Judgment  in  suit  brought  under  section  6241. 

685.  (Sec.  6244.)  Allowance  of  claim  confirmed  or  set  aside,  on  excep- 

tions heard. 


-5944.]  EXECUTORS    AND    ADMINISTRATORS.  307 

566.  (Sec.  5994,  5.)     Letters  testamentary  granted. 
[Title.'] 

On  application,  the  court  grants  unto  II.  C.  letters  testa- 
mentary under  the  will  of  B.  11.,  late  of  this  county,  deceased, 
he  Ijciiiii'  luuiK'd  as  executor  therein  ;  whereupon  he  accepts* 
said  ap[)ointment,  liles  an  estimate  of  the  value  of  the  whole 
estate,"  and  presents  his  hond  as  such  executor  in  the  sum  of 

dollars,  with  E.  II.  and  G.  D.  as  sureties,  to  the  approval 

of  the  court.  [Or  (/  no  bond  is  required  sa>j :  AVhereupon  he 
acccejits  said  appointment;  no  hond  required  hy  said  will.] 
And  II.  B.,  C.  D.,  and  R,  M.  are  appointed  appraisers.- 

Court  may  add  by  sec.  6025  ]  : 

And  it  is  ordered  that  said  executor  include  in  the  in- 
ventory an  appraisement  of  all  the  real  estate  of  said  de- 
cedent. 

567.  (Sec.  5994,  5.)     Letters  of  administration  granted  to  iridow 

or  next  of  kin.'^ 
[Title.-] 

On  application,  the  court  "-rants  unto  E.  T.  [widow]  letters 
of  administration  on  the  estate  of  H.  T.,  late  of  this  county, 
deceased.  Thereupon  she  [or,  he]  accepts  *  said  ap})oint- 
ment,  files  an  estimate  of  the  whole  estate  of  said  decedent, 
and  presents  her  [or,  his]  hond  as  such  administratrix  [or,  ad- 
ministrator] in  the  sum  of dollars,  with  II.  T.  and  G. 

II.  as  sureties,  to  the  approval  of  the  court.  And  H.  B.,  C. 
D.,  and  Iv.  M.  are  appointed  a}>praisers.- 

Court  may  add  by  sec.  6025]  : 

And  it  is  ordered  that  said  administratrix  [or,  administra- 
tor] include  in  the  inventory  an  appraisement  of  all  the  real 
estate  of  said  decedent. 

568.  (Sec.  5994,  5.)     Letters  granted   to   other  than    widow   or 

next  of  kin. 
[Title.] 
The  widow  and  next  of  kin  of  H.  T.,  late  of  this  county, 

1  This  estimate  is  given  to  enable  the  probate  judge  to  fix  the  amount  of  the 
tond.  If  this  entry  is  used  in  ease  of  a  non-resident  decedent,  say  "of  the 
whole  estate  to  be  administered  in  this  county." 

''If  appointed  subsequently,  see  Entry  No.  587. 

3  See  sec.  6005. 


308  JOURNAL   ENTRIES.  [SEC.  5944- 

deceased,  having  declined  to  take  administration  of  his  es- 
tate/ the  court,  on  application,  grants  letters  of  administra- 
tion on  said  estate  to  H.  M.  Thereupon  he  accepts  [con- 
tinue  asfro)ti  *  in  last]. 

Entries  in  form  of  last  may  be  made  in  other  cases  provided  for  in 
sec.  6005. 

569.  (Sec.  5994.)     Letters  granted  on  estate,  within  the  state,  of 

person  dying  intestate  out  of  the  state. 

[Title.] 

On  application  o    ,  the  court  grants  unto  W.  P.  letters 

of  administration  on  the  estate  situated  m  this  county  of  G. 
H.,  late  of  Madison,  Wisconsin,  deceased.  Whereupon  said 
W.  P.  accepts  said  appointment,  and  files  an  estimate  of  the 
whole  estate  situated  as  aforesaid  in  this  county,  and  pre- 
sents his  bond  [conclude  as  in  No.  567J. 

570.  (Sec.  GOOO.'^     Letters  granted  lohen  one,  of  two  or  more  named 

in  ivUl  as  executors,  declines. 

[Title.] 

H.  J).,  named  in  the  will  of  L.  M.,  late  of  this  county,  de- 
ceased, as  one  of  the  executors,  not  accepting  the  trust,  let- 
ters testamentary  are,  on  application,  granted  to  11.  C, 
named  in  said  will  as  the  other  of  said  executors.  Where- 
upon he  accepts  [cojiclude  as  from  *  in  No.  566]. 

571.  (Sec.  6000.)    Letter's  of  administration ,  with  the  will  annexed, 

granted,  when  person  named,  in  will  as  sole 

executor  declines. 

[Title.] 

H.  D.,  named  as  executor  in  the  will  of  L.  M.,  late  of  this 
county,  deceased,  not  accepting  the  trust  [or,  having  failed  to 
give  bond  as  required  bylaw],  letters  of  administration,  with 
the  will  annexed,  on  the  estate  of  the  said  L.  M.  are  hereby, 
on  application,  granted  to  A.  P. 

Whereupon  he  accepts  [conclude  as  from  *  in  No.  567]. 

1  See  sec-  6005. 


-GOIC]  EXECUTORS    AND    ADMINISTRATORS.  309 

572.  (Sec.  6001.)     Administration,  with  the  loill  annexed,  granted 

dtirinq  minority  of  executor. 
[Title.'] 

Oil  application,  and  the  executor  named  in  tlio  will  of  L. 

M.,  late  of  this  county,  deceased,  l)eing  under  the  age  of 

twenty-one  years,  letters  of  administration,  with  the  will  an- 

. nexed,  on  the  estate  of  the  said  L.  M.,  are  hereby  granted 

during  the  minority  of  said  executor,  to  A.  P. 

AVhereupon  he  accepts  [conclude  as  from  *  in  No.  567]. 

573.  (Sec.  6001.)     Letters  testamentary  granted  to  one,  lohen  the 

other  executor  named  in  will  is  under  age. 

[Title.] 

H.  D.,  named  as  one  of  the  executors  in  the  will  of  L.  M., 
late  of  this  county,  deceased,  being  under  age,  letters  testa- 
mentary are,  on  application,  granted  to  IT.  C,  named  in  said 
will  as  the  other  executor,  during  the  minority  of  the  said 
H.  D. 

Whereupon  he  acce]>ts  [a.'^froui  ^^  in  No.  566]. 

574.  (Sec.  6001.)      Entry,  irhen   executor  named   in    last   entry 

comes  of  arje. 

[Title  ?^ 

II.  D.,  named  as  one  of  the  executors  in  the  will  of  L.  M., 
late  of  this  county,  deceased,  having  now  come  of  age,  let- 
ters testamentary  are  granted  unto  him  as  such  executor, 
with  II.  C.  the  other  executor  named  in  said  will. 

Whereupon  he  accepts  [conclude  as  from  *  in  No.  566]. 

Sec.  6003.  For  entry  grautiug  administration  after  death  of  execu- 
tor, see  Entry  No.  583. 

575.  (Sec.  6007.)     Special  administrator  appointed. 
[Title.-]   _ 

On  application,  and  good  cause  being  shown  therefor,  the 
court  hereby  appoints  J.  AV.  as  special  administrator  of  the 
estate  of  W.  M.,  late  of  this  county,  deceased,  to  collect  and 
preserve  the  effects  of  the  decedent  until  letters  testamentary 

or  of  administration  are  granted,  and  fix  his  l)ond  at  $ . 

Whereupon  the  said  J.  W.  accepts  [as  from  *  in  No.  567]. 


310  JOURNAL    ENTRIES.  [SEC,  6011- 

576.  (Sec.  6011.)     Citation  against  special  administrator  allowed. 
[Title.'] 

On  comj^laint  of  the  executor  of  the  estate  of  W.  M.,  a 
citation  is  allowed  to  be  issued  against  J.  W.,  special  admin- 
istrator of  said  estate,  to  appear  before  the  court  forthwith 

[or,  on  the day  of ,  18 — ],  to  answer  concerning  his 

neglect  [or,  refusal]  to  deliver  over  to  said  executor  certain 
property  belonging  to  said  estate. 

577.  (Sec.  6011.)     AttacltmeDt  allowed  after  citation  disobeyed. 
[Title.] 

And  now,  J.  W.  having  failed  to  appear  before  this  court 
in  answer  to  its  citation  heretofore  issued  and  served  per- 
sonally upon  him,  a  writ  of  attachment  is,  on  motion,  allowed 
to  be  issued,   commanding  the  sherift'  to  arrest  and  bring 

the  said  J.  W.  before  this  court  forthwith   [or,  on  the 

day  of ,  18 — ],  to  answer  for  his  disobedience  and  for 

his  neglect  [or,  refusal]  to  deliver  over  to  said  executor  cer- 
tain property  belonging  to  said  estate. 

578.  (Sec.  6011.)     Order  committing  to  jad. 
[Title.] 

This  day  came  the  said  J.  AV.,  in  response  to  the  citation 
heretofore  issued  for  him  [or,  in  custody  of  the  sheritf],  and 
was  examined  under  oath  touching  his  neglect  [or,  refusal] 
to  deliver  over  to  the  executor  of  the  estate  of  W.  M.  cer- 
tain property  belonging  to  said  estate ;  whereupon,  after 
hearing  the  testimony  produced,  the  court  find  that  the  said 
executor  is  entitled  to  said  property,  viz.  [j)ia7nc],  and  that 
the  said  J.  W.  retains  the  same  without  reasonal)le  excuse. 

It  is  therefore  ordered  that  the  said  J.  W.  be  committed 
to  the  jail  of  tliis  county,  there  to  remain  until  he  shall  de- 
liver over  said  property,  or  be  otherwise  legally  discharged. 

Sec.  6011.  For  judgment  in  the  civil  action  provided  for,  us;e  the 
ordinary  forms  of  the  civil  code. 


—6017.]  EXECUTORS    AND    ADMINISTRATORS.  311 

579.  (Sec.  6013.)     Administration  of  assets,  within  the  state,  of 

non-resident   doing   business    in   the  state, 
granted. 
[Title.'] 

Entry  may  he  made  in  form  as  No.  569,  modified  to  suit  the 
case. 

580.  (Sec.  6014.)     Administration  granted   after   tioenty   years 

from  death  of  decedent. 

[Title.] 

The  petition  herein  coming  on  this  day  to  be  heard,  and 
good  cause  being  shown,  and  notice  liaving  been  given  of  the 
hearing  of  tliis  petition,  as  required  by  the  court,  the  court 
grants  unto  E.  T.  letters  of  administration  [conclude  as  in 
Entry  No.  507]. 

581.  (Sec.  G015.)     Resignation  of  executor  or  administrator  ac- 

cepted and  administrator  appointed. 

[Title.] 

This  day  came  "W.  P.,  executor  of  tlie  hist  will  and  testa- 
ment [or,  administrator  of  the  estate]  of  A.  T.,  deceased,  and 
offered  liis  resignation  of  said  office,  whicli  was  accepted  by 
the  court. 

And  thereupon  the  court  grants  unto  E.  T.  letters  of  ad- 
ministration on  the  said  estate,  not  already  administered. 

AVhereupon  the  said  E.  T.  accepts  [as  from  *  ///  No,  ,')67]. 

582.  (Sec.  6017,  81  O.  L.  137.)     Exfcutor  or  admiiiistrator  re- 

moved and  ntir  admiuistraior  (ip/'oinfcd. 

[  Title.] 

On  motion  made  to  the  court,  and  full  hearing,  the  court 
find  that  E.  T..  executor  of  M.  AV.,  deceased,  after  being 
cited  for  that  purpose,  has  neglected  to  render  his  accounts 
according  to  law  and  the  order  of  this  court  [or  state  other 
cause  named  in  section  6017],  it  is  now  therefore  ordered  that 
said  E.  T.  be  removed  from  the  administration  of  said  estate. 

And,  on  application,  the  court  grants  unto  A.  P.  letters  of 
administration  [with  the  will  annexed]  on  the  estate  of  the 
said  R.  W.,  deceased,  not  already  administered. 

And  thereupon  the  said  A.  P.  accepts  [as  from^  in  No.  567]- 


312  JOURNAL   ENTRIES.  [SEC.  6018-» 

583.  (Sec.  6018.)    Letters  of  at/ministration,  de  bonis  non,  granted 

after  death  of  executor  or  administrator. 

[Title.] 

J.  S.,  the  executor  [or,  former  administrator  of  the  estate] 
of  W.  P.,  having  died,  the  court,  on  application,  grants  unto 
A,  P.  letters  of  administration  [with  the  will  annexed]  on 
the  estate  of  the  said  W.  P.,  not  already  administered  by  the 
former  executor  [or,  administrator]. 

Whereupon  the  said  A,  P.  accepts  [as  from  *  in  No.  567]. 

584.  (Sec.  6019.)     Administration  revoked  on  a  will  being  subse- 

quently proved,  and  letters  testamentary 
granted. 

[Title.l 

A  will  of  L.  M.,  late  of  this  county,  deceased,  having  been 
duly  proved  and  allowed  since  letters  of  administration  were 
granted  to  E.  T.  upon  his  estate,  as  intestate,  said  letters  of 
administration  are  hereby  revoked.  And,  on  application, 
letters  testamentary  are  granted  unto  H.  C.  under  the  said 
will. 

Whereu23on  the  said  11.  C.  accepts  [continue  as  from  *  in 
No.  566]. 

And  it  is  ordered  that  E.  T.  deliver  possession  to  the  said 
H.  C.  of  all  the  personal  effects  and  assets  of  said  estate. 

585.  (Sec.  6022.)     Letters  granted  after  marriage  of  executrix  or 

administratrix. 
[Title] 
Modify  Entry  No.  583. 

The  ixventory,  the  allowance  to  the  widow  and  children, 
and  the  debts  due  to  the  estate 

586.  (Sec.  6028.)     Appraisement  dispensed  loith. 
[Title.] 

For  good  cause  shown,  an  appraisement  of  the  estate  of 
the  decedent  herein  is  dispensed  with. 


-004»J.]  EXECUTORS    AND    ADMINISTRATORS.  313 

587.  (Sec.  6028.)     Appraisers  appointed } 
[Title.'] 

The  court  hereby  appoint  G.  II.,  A.  T.,  and  W.  C,  three 
suitable  disinterested  persons,  to  appraise  the  estate  of  II.  C, 
deceased. 

Hi-c.  (){)40.  II"  no  appraisers  are  appointed  to  ai)praise  the  personal 
])r()perty,  the  court  will  appoint  special  ones  to  set  off  the  widow's  al- 
lowance, as  follows: 

588.  (Sec.  0040.)     Ap-praisers  appointed  to  set  off  widow's  allow- 

ance. 

[2itlc.'] 

This  cause  beinjj:  lieard  this  day,  upon  the  petition  of  C. 
P.,  widow  of  said  .) .  1'.,  deceased,  for  a  first  year's  allowance, 
and  it  appearing  to  the  court  that  heretofore  no  appraisers 
of  the  personal  property  of  the  said  decedent  have  been  ap- 
pointed, and  no  allowance  made  to  the  said  widow,  it  is  or- 
dered that  F.  I).,  G.  S.,  and  E.  I),  bo,  and  they  are  hereby, 
appointed  as  appraisers  to  set  off  to  said  widow  a  sufficient 
amount  in  property  or  money  for  her  support  for  one  year 
from  the  time  of  the  death  of  said  decedent. 

589.  (Sec.  6043.)     Allo^rance  to  vndow  increased. 

This  cause  coming  on  to  be  heard  on  the  petition  of  the 
widow,  C.  X.,  to  review  the  allowance  made  to  her  by  the 
appraisers  of  the  estate,  and  for  an  increase  of  the  amount, 
the  court,  being  fully  advised,  find  upon  the  testimony  of- 
fered by  the  parties  interested  that  said  allowance  should  Ije 
increased.  Wherefore  it  is  ordered  and  adjudged  that  said 
allowance  as  fixed  by  the  appraisers  be,  and  it  hereby  is,  set 

aside.     And  the  court  find  that  the  sum  of  dollars  is 

necessary  for  the  suppoi't  of  said  widow,  and  do  fix  lier  year's 
allowance  at  said  sum,  and  order  the  same  paid  to  her,  or 
her  attorney,  by  the  administrator,  from  and  out  of  the  first 
moneys  of  the  estate  coming  into  his  hands,  without  unnec- 
essary delay. 

^  If  appointed  at  the  time  letters  are  granted,  see  Entries  Nos.  566  and  567. 


314  JOURNAL    ENTRIES.  [SEC.  6047- 

A  similar  entry  may  be  made  for  diminishing  the  allowance. 

590.  (Sec.  6047.)     Order  for  return  of  inventory^  etc. 
[Title.'] 

On  motion  to  the  court  by ,  and  it  appearing  that  E. 

T.,  the  executor  of  the  above-named  decedent,  has  failed  to 
return  an  inventory  of  the  estate  within  the  time  required 
by  law,  it  is  ordered  that  he  return  the  same  on  or  before 

the day  of ,  18 — ,  or  show  cause  before  this  court 

on  that  day  why  an  attachment  should  not  be  issued  against 
him. 

591.  (6048.)     Attachment  allowed  on  failure  to  return  inventory.'- 
[Title.] 

And  now  E.  T.,  the  executor  of  the  above-named  decedent, 
having  failed  to  return  an  inventory  thereof,  or  show  good 
cause  why  he  has  not  done  so,  according  to  the  former  order 
of  this  court,  served  personally  upon  him,  an  attachment  is, 
on  motion,  allowed  to  be  issued,  commanding  the  sheriff  to 
arrest  and  bring  the  said  E.  T.  before  this  court  forthwith 
[or,  on  the day  of ,  18 — ],  to  answer  for  his  disobe- 
dience, and  for  his  failure  to  return  such  inventory. 

593.  (Sec.  6049.)  Letters  revoked,  and  administration  granted 
to  another,  for  failure  to  return  inventory. 

[Tifle.] 

E.  T.,  the  executor  of  the  above  named  estate,  having  ab- 
sconded [or,  concealed  himself],  so  that  the  former  order  of 
this  court  could  not  be  served  personally  on  him  [or,  having 

^By  81  O.  L.  137,  sec.  6048  is  repealed;  but  as  sec.  G047  still  authorizes  the 
court  to  require  the  executor  to  show  cause  why  an  attachment  should  not  issue 
it  seems  likely  that  on  failure  to  show  cause  the  attachment  should  be  issued, 
and  this  form  is  therefore  retained. 


-6060.]  EXECUTORS    AND    ADMINISTRATORS.  315 

failed  to  file  an  inventory  as  required  by  law  and  the  former 
order  of  this  court],  his  letters  testamentary  are  hereby  re- 
voked. And,  on  application,  letters  of  administration  on 
the  estate  of  the  said  E.  C,  deceased,  not  yet  adrainistereu, 
are  granted  to  M.  W. 

Thereupon  the  said  M.  W.  presented  his  bond  [contiaue 
as  from  *  iyi  No.  567]. 

And  it  is  ordered  that  E.  T.  deliver  possession  to  the  said 
M.  W.  of  all  the  personal  eftects  and  assets  of  tlie  said  es- 
tate. 

594.  (Sec.  6053.)     Citation    allowed   against   fcrson   concealing 

assets. 

[Title.] 

On  complaint  of  the  administrator  of  the  <il)Ove-namc(l  es- 
tate [or  other  interested  party],  a  citation  is  allowed  to  be  issued 
against  J.  W..  to  appear  before  this  court  forthwith  [or,  on 

the day  of  ],  to  be  examined  touching  his  alleged 

concealment  [or,  embezzlement]  of  certain  effects  of  the  said 
decedent,  to  wit  [describe  as  specijicalhi  as  can  he  done]. 

If  the  citation  is  disobeyed,  an  attacliment  may  be  ordered,  as  in 
No.  577. 

595.  (Sec.  6054.)     Order  committing  to  jail,  on  refused  to  an- 

swer, etc. 

[Title:] 

This  day  J.  W.  came  before  the  court,  upon  citation  here- 
tofore issued  [or,  in  custody  of  the  sheriff],  and  the  follow- 
ing interrogatories  were  lawfully  propounded  to  him,  touch- 
ing the  charge  against  him,  viz.  [state  interi^ogatories].  And 
the  said  J.  W.  refused  to  answer  the  same.  Thereupon  it  is 
adj;;dged  by  the  court  that  the  said  J.  W.  be  committed  to 
the  jail  of  this  county,  there  to  remain  in  close  custody 
until  he  shall  submit  to  answer,  or  be  otherwise  legally  dis- 
charged. 

596.  (Sec.  6057.)     JiLclgment  against  person  found  guilty  of  con- 

cealing assets. 
[Title:] 
Upon  complaint  of  the  administrator  of  the  above-named 


316  JOURNAL    ENTRIES,  [SEC.  6061- 

estate  [or  other  interested  party],  and  after  full  examination, 
the  court  find  that  J.  W.  is  guilty,  as  accused,  of  having  con- 
cealed [or,  embezzled,  or,  conveyed  away]  certain  moneys  [or, 
eiieets]  belonging  to  the  estate  of  the  said  R.  M.,  deceased, 

to  wit  [mnne  ^property]  of  the  value  of  .§ . 

It  is  therefore  considered  and  adjudged  that  E.  T.,  the  ad- 
ministrator as  aforesaid  [or,  if  there  is  no  executor  or  adminis- 
trator, the  State  of  Ohio,  for  the  use  of  said  estate],  recover 

from  the  said  J.  W.  the  said  sum  of  $ ,  together  with  ten 

per  cent  penalty  thereon,  and  also  the  costs  of  this  prosecu- 
tion. 

Entries  similar  to  the  last  three  may  be  made  in  other  cases  under 
sees.  6053-7. 

597.  (Sec.  6061.)     Appraisers  appointed  for  property  discovered 

after  in  ventory  filed. 

[Title.] 

It  appearing  to  the  court  that  the  administrator  herein  has 
become  aware  of  certain  personal  property  belonging  to  the 
estate  of  J.  R.,  deceased,  unknown  to  the  administrator  at 
the  time  of  the  filing  of  the  inventory  of  said  estate,  the 
court  appoint  G.  11. ,  A.  T.,  and  R.  H.,  three  suitable  disin- 
terested persons,  to  appraise  such  personal  estate. 

Sec.  6061.  For  order  for  return  of  inventory,  see  Entry  No.  590. 

598.  (Sec.  6063.)      Time  for  settlement  by  executor  extended. 
[Title.] 

On  motion  and  afiidavit  of  E.  T.,  the  executor  of  the  de- 
cedent above  named,  and  the  court  being  satisfied  that  it  is 
necessary,  the  time  for  said  executor  to  collect  the  assets  of 
said  estate  is  extended months  from  this  date. 

599.  (Sec.  6073.)     Order  permitting  compounding  of  debt. 
[Title.] 

Upon  motion  of  E.  T.,  executor  of  C.  D.,  deceased,  to 
compound  the  claim  against  R.  S.,  and  it  appearing  to  the 
court  that  said  R.  S.  is  unable  to  pay  his  debts  in  full,  said 
executor  is  autliorized  to  give  a  discharge  of  the  debt  afore- 
said upon  receiving  thereon  the  sum  of  ^ . 


-6076.]  executors  and  administrators.  317 

Sale  of  tersonal  property,  and  the  sale  bill — 

600.  (Sec.  G074.)     Appraisement  and  sale  dispensed  vnth. 
[Title.] 

The  testator  having  expressed  in  his  will  a  desire  that  no 
appraisement  or  sale  of  the  assets  of  the  above-named  estate 
be  made,  they  are  hereby  dispensed  with. 

601.  (Sec.  6074.)     Appraisement  and  sale  subsequently  ordered. 
[7i(lf.] 

On  application  of  T.  B.,  one  of  the  creditors  of  the  above- 
named  estate,  and  it  appearing  that  a  sale  of  the  assets  of 
said  estate  is  necessary  for  the  payment  of  debts,  it  is  now 
ordered,  for  good  cause  shown,  that  an  appraisement  and  sale 
thereof  be  made  by  the  executor,  as  though  they  liad  not 
been  dispensed  with,  and  IT.  B.,  C.  D.  and  B.  M.  are  appionted 
appraisers  herein.  [Directions  for  publie  or  priimtc  sale,  as  in 
entries  following,  nuuj  be  added  Jiere.'] 

602.  (Sec.  6076.)     Oilier  for  private  sale  of  personal  property. 
[Title.] 

On  motion  and  affidavit  filed,  and  for  good  cause  shown, 
H.  B.,  administrator  of  the  estate  of  W.  C,  deceased,  is  au- 
thorized to  sell  [within months],  for  cash  [or  otherwise, 

on  such  terms  as  the  court  may  direct],^  at  private  sale  the  per- 
sonal property  designated  in  said  motion,  at  not  less  than 
the  appraised  value  thereof. 

603.  (Sec.  6076.)     Same,  at  less  than  than  appraised  value. 
[Title.] 

The  administrator  of  the  estate  of  L.  P.,  deceased,  is,  on 
motion,  hereby  authorized  to  sell  at  private  sale,  for  cash  [or 
specify  other  terms  of  sale]\  the  shares  of  stock-  of  the  C.  P. 
Railroad  belonging  to  the  said  estate.  And  the  court  being 
satisfied,  by  the  affidavits  of  E.  G.,  F.  H.,  and  W.  T.,  that 
said  property  can  not  be  sold  at  its  appraised  value,  and  that 
it  will  be  for  the  best  interest  of  the  estate  to  sell  the  same 
at  a  less  price,  the  administrator  is  authorized  so  to  sell  it, 


»See  sec.  6081. 
2  See  sec.  6080. 


21 


318  JOURNAL    ENTRIES.  [SEC.   6076- 

but  not  at  less  than  the  market  value.  [^Or  the  court  may 
7iame  the  price^ 

For  an  order  that  personal  property  be  sold  in  the  regular  course 
of  trade,  modify  Entry  No.  750. 

604.  (Sec.  6076).     Public  sale  directed^  on  failure  to  sell  at  pri- 

vate sale. 

[Title.'] 

Private  sale  of  the  personal  property  of  the  above-named 
estate  not  having  been  etfected,  it  is  now  ordered  that  the 
same  be  sold  at  public  sale  as  though  private  sale  had  not 
been  ordered. 

605.  (Sec.  6077-8.)      Compoundijig  of  desperate  claim  authorized. 
[Title.] 

On  motion  of  D.  G.,  executor  of  the  above-named  dece- 
dent, and  due  notice  thereof  being  given,  and  proof  being 
made  by  him  that  the  claim  against  J.  K.  is  desperate,  on 
account  of  [sprcifij  cause  named  in  this  section^  the  executor 
is  authorized  *  to  compound  the  same  by  taking  in  cash 
$ ,-  and  taking  the  individual  notes  of  J.  K.  for  the  bal- 
ance, payable  [specify]  in  full  satisfaction  of  said  claim. 

606.  (Sec.  6077.)   Sale  of  desperate  claim  at  public  sale  authorized. 
[Title.] 

E.  T.,  administrator  of  the  estate  of  11.  T.,  having  filed 
a  motion  in  this  court  for  an  order  approving  and  authorizing 
the  sale,  or  other  disposition,  of  certain  claims  belonging  to 
him  as  administrator  as  aforesaid,  and  which  have  become 
desperate  and  difiicult  to  collect,  and  the  court  being  fully 
advised  in  the  premises,  it  is  ordered  that  the  claims  described 
in,  and  attached  to,  said  motion  *  be  sold  In'  said  adminis- 
trator at  public  auction,  at  the  court-house  of county, 

Ohio,  to  the  highest  [cash]''  bidder  for  all  of  said  claims  ; 
notice  of  such  sale  being  first  given  by  publication  for  four 
consecutive  weeks  in  a  newspaper  of  general  circulation  in 
said  county  of . 

1  See  sec.  6080.  -  See  sec.  6079.         » See  sec.  6081. 


-6095.]  EXECUTORS    AND    ADMINISTRATORS.  319 

607  (Sec.  6077.)     Same,  at  private  sale. 

[Title.] 

As  in  last  to  *,  and  coyitinue:'] — be  sold  [for  casli]^  at  pri- 
vate sale,  at  not  less  that  their  appraised  value. 

Other  orders  as  to  private  sale  may  be  made,  as  iu  case  of  other 
persouiil  property. 

608.  (Sec.  6077.)     Order  that  desperate  clahn  be  filed  for  benefit 

of  creditor,  etc. 

[Title.'] 

As  in  No.  606  to  *,  and  continue:] — be  filed  by  said  admin- 
istrator in  this  court  for  the  benefit  of  L.  W.,  one  of  the 
creditors  of  the  said  II.  T.,  who  has  made  application  there- 
for, and  who  is  permitted  to  take  the  same,  at  their  appraised 
value,  as  a  credit  on  his  claim. 

Sec.  6087.  Entries  compelling  the  i-eturn  of  sale  bill,  or  of  private 
sale,  may  be  similar  to  those  given  nnder  sees.  6047-8-9,  Nos.  590-3. 

609.  Sale  of  personal  propcrfi/  confirmed. 
[Title:] 

The  executor  of  the  above-named  decedent  having  filed 
his  return  of  [name  any  sale'],  and  the  court  having  exam- 
ined the  same,  find  said  proceedings  in  all  respects  regular 
and  in  accordance  with  law,  and  therefore  afiirm  and  con- 
firm the  same. 

The  notice  to   creditors  ;  the  authentication  and  payment 
OF  debts,  and  payment  of  legacies 

610.  (Sec.  6093).     Referees  approved  of. 
[Title.] 

The  executor  of  the  above-named  estate  havins:  entered 
into  an  agreement  with  C.  E.,  to  refer  the  claim  of  the  said 
C.  E.  to  the  following  referees,  viz  :  J.  S.,  R.  B.,  and  W.  T>., 
the  court  hereby  approve  of  said  referees. 

1  See  sec.  6081. 


320  JOURNAL    ENTRIES.  [SEC.  6096- 

611.  (Sec.  6096.)     Report  of  referees,   in  arbitration,  in  favor 

of  claim,  confirmed  and  judgment  entered — • 
by  court  of  commofi  pleas. 

[Title.] 

It 'appearing  that,  by  an  agreement  in  writing  entered 
into  by  the  executor  of  the  above-named  decedent  and  C.  E., 
the  chiim  of  the  said  C.  E.  was  heretofore  referred  to  J.  S., 
R.  B.,  and  W.  T>.,  and  now,  the  cause  coming  on  to  be  heard 
on  the  report  of  the  referees,  and  it  appearing  that  all  the  con- 
ditions of  the  agreement  to  refer  the  matters  in  controversy 
have  been  complied  with,  and  a  copy  of  the  award  made  by 
said  referees  duly  furnished  to  the  said  parties,'  *  and  the  sum 

off having  been,  by  said  referees,  awarded  to  the  said  C. 

E.  against  the  executor  of  the  decedent  above  named  \or  specify 
any  other  judgmenf\  the  aforesaid  report  and  finding  are 
hereby  approved  and  confirmed.  It  is  thereupon  adjudged 
by  the  court  that  tlie  said  C.  E.  recover  from  the  said  C.  D., 

the  executor  of  the  said  II.  T.,  deceased,  the  sum  of 

dollars,  so  found  to  be  due,  together  with  his  costs'  herein 
expended,  to  be  levied  of  the  property  of  the  testator  in  the 
hands  of  said  executor.^ 

612.  (Sec.  6096.)      Judgment   against  the  claim,   on   report  of 

referees. 

[Title.] 

As  in  last  /o*,  and  continue :] — and  the  said  referees  having 
found  against  the  claim  of  the  said  C.  E.,  it  is  therefore  ad- 
judged that  tlie  defendant  go  hence,  without  day,  and  re- 
cover from  the  plaintitf  his  costs  herein  expended. 

613.  (Sec.  6096.)     Report  of  referees  set  aside  and  new  referees 

appointed. 

[Title:] 

This  cause  coming  on  this  day  to  be  lieard  on  the  report 
of  the  referees  to  whom,  by  agreement  of  parties,  the  claim 
of  C.  E.  against  the  estate  above  named  liad  been  referred, 
and  on  the  motion  to  set  the  same  aside,  the  court  now  find 

^  By  sec.  5607.  ^  As  to  costs,  see  sec.  6106. 

^  See  post,  page  320.     See  also  sec.  6107. 


-6101,]  EXECUTORS   AND    ADMINISTRATORS.  321 

that  said  report  ought  to  he,  and  it  herehy  is,  set  aside  and 
held  for  nauijht.  And  it  is  ordered  that  the  matter  be  re- 
ferred,  upon  the  terms  and  conditions  of  the  former  refer- 
ence, to  W.  R.  W.,  L.  E.,  and  M.  II.,  who  are  directed,  after 
hearing,  to  make  due  report  to  this  court. 

Sec.  6097-8.  The  judgments  here  provided  for  wih  be  in  the  usual 
form  of  judgments  in  the  common  pleas,  except  as  follows: 

It  was  said,  in  the  case  of  Haymaker's  Ex'rs  v.  Haymaker,  4  Ohio, 
St.  278,  that  if  a  judgment  should  be  rendered  against  the  executor, 
without  adding  the  words,  "  to  be  levied  of  the  property  of  the  testa- 
tor," it  might,  and  probably  would,  be  erroneous.  These  words  should 
therefore  be  added  to  the  judgment  entry. 

As  to  costs,  sec.  6106  })rovides  when  they  may  not  be  recovered  from 
the  executor  or  administrator  ;  and  that  the  court  may  direct  that  they 
be  levied  of  the  property  of  the  defendant  or  of  the  deceased,  as  shall 
be  just. 

Executor's  or  administrator's  claim  against  the  estate  he 
represents — 

614.  (Sec.  6100.)      Order  that  notice  of  hearing  be  given. 
[Title.] 

E.  T.,  the  executor  of  the  decedent  above  named,  having 
presented  to  this  court  his  claim  against  said  estate  in  the 

sum  of  $ ,  tlie  court  now  tix  the day  of ,  18 — , 

for  the  liearing  of  the  same,  and  order  that  said  executor 
give  notice  thereof  in  writing  to  all  parties  interested,  as  re- 
Lj[uired  by  law. 

615.  (Sec.  6101.)     Claim  of  exec ator  allowed. 
[Title.-] 

Xow  comes  E.  T.,  the  executor  of  the  above-named  dece- 
lent,  and  presents  to  this  court  proof  of  the  service  of  no- 
tice of  the  hearing  of  his  claim  upon  all  parties  interested,  as 
required  by  law  and  the  order  of  this  court ;  and  the  court 
being  satisfied  therewitli,  said  proof  and  service  are  hereby 
found  to  be  properly  and  legally  made,  and  are  therefore 
approved.  And.  upon  hearing  of  the  testimony,  the  court 
finds  said  claim  to  be  valid  and  correct,  and  does  therefore 


322  JOURNAL   ENTRIES.  [SEC.  6101- 

allow  the  same  against  the  estate  of  the  said  "W".  C,  de- 
ceased, in  the  sum  of dollars. 

Sec.  6101.  For  entries  iu  case  of  appeal,  see  Entry  No.  279,  page 
384.  Exceptions  may  be  taken,  bill  of  exceptions  allowed,  etc.,  as  in 
common  pleas. 

Sec.  6111.  For  entries  in  case  estate  is  declared  insolvent,  see 
page  345. 

616.  (Sec.  6105.)     Execution  against  executor  allowed. 
[Title:] 

On  motion  of  A.  B.,  he  is  hereby  allowed  to  issue  execu- 
tion against  E.  T.,  as  executor  of  M.  B.,  deceased,  on  his 
judgment  obtained  in  the  court  of  common  pleas  of  this 
county,  in  case  ]N"o. of  that  court,  in  the  sum  of  ^ . 

617.  (Sec.  6107.)     Judgment  of  waste  against  executor. 
[Title.] 

This  cause  coming  on  for  liearing  on  the  petition  [or,  plead- 
ings] and  evidence,  the  court  tind,  upon  the  suggestion  of 
the  plaintitF,  that  the  defendant,  E.  T.,  as  executor  of  W. 
M.,  deceased,  has  been  guilty  *  of  waste  to  the  amount  of 

dollars,  and  that  he  should  be  held  personally  liable  to 

the  plaintiif,  to  that  extent,  on  account  of  plaintifTs  judg- 
ment against  the  estate  of  the  said  W.  j\I. 

It  is  therefore  considered  by  the  court  that  said  plaintiff 
recover  from  the  defendant,  E.  T.,  personally,  the  said  sum 
of  $ ,  together  with  his  costs  herein  expended,  and  exe- 
cution is  awarded  therefor. 

618.  (Sec.  6107.)     Same,  when  amount  can  not  be  ascertained. 
[Title.] 

As  in  last  to  *,  aiid  continue]  : — of  waste,  and,  as  tlie  amount 
of  said  waste  can  not  be  ascertained,  the  court  find  that  the 
said  defendant  should  be  held  personally  liable  to  the  plaint- 
iff, on  account  of  plaintiff's  judgment  against  the  estate  of 
"W.  M.,  to  the  full  amount  of  said  judgment  and  interest, 
viz., dollars. 

It  is  therefore  considered  [as  in  lasf^]. 


-6127.]  EXECUTORS    AND    ADMINISTRATORS.  323 

619.  (Sec.  6115.)  Order  for  payment  of  claim  on  lohich  right  of 
action  ivill  not  accrue  for  four  years. 

[Title.] 

This  day  A.  C.  presented  to  the  court  a  claim  in  the  sum 

of  I against  the  abov'e-!iamed  estate,  which  is  not  pay- 

al)le  until  the day  of  ■,  18 — ,  more  than  four  years 

fiom  the  date  of  tlie  l)ond  of  the  administrator  of  said  es- 
tate :  iind,  on  examination,  said  claim  appearing  to  he  justly 
(Inc.  *  it  is  now  ordered,  by  the  consent  of  the  said  A.  C, 
and  of  the  administrator  of  said  estate,  that  the  adminis- 
tratoi-  })ay  the   present  value   of  said   claim,  to  wit,  the  sum 

of dollars,  to  tlie  said  A.  C,  in  full  discharge  of  said 

claim. 

C20.  [Sec.  Ollf).]  Order  that  administrator  retain  money  for 
pa)/ment  of  claim  7iamed  in  last  entry. 

[Tiik.] 

As  in  last  to  *,  and  continue]: — it  is  now  ordered  that  said 
administrator  retain  in  his  hands  sulHcient  money  to  satisfy 
the  same  when  it  shall  l)ecome  })ayable. 

621.  (Sec.  0115.)  Order  that  bond  be  taken  by  owner  of  claim 
named  in  last  two  entries. 

[Title.] 

A.  C.  having  presented  to  the  court  a  claim,  in  the  sum  of 
f ,  against  the  above-named  estate,  on  which  right  of  ac- 
tion will  not  accrue  witliin  four  years  after  the  date  of  the 
administration  bond,  and  thereupon  O.  H.,  one  of  the  heirs 
of  tlie  deceased,  having  offered  to  give  bond  with  sufficient 
security  to  the  said  A.  0.  for  the  payment  of  said  claim 
when  it  shall  ])econie  payable,  in  case  it  shall  be  proved  to  be 
due,  it  Is  now  ordered  that  said  bond,  with  S.  S.  and  G.  B. 
as  sureties,  be  taken  by  the  said  A.  C,  and  that  the  admin- 
istrator be  released  from  payment  of  said  claim. 

€'22.  (Sec.  6126.)  Allowing  notice  of  appointment  of  executor  to 
be  given,  etc. 

[Title.] 

On  hearing  of  the  petition  of  the  executor  of  the  decedent 
above  named,  and  it  appearing  that  he  failed  to  give  notice 


324  JOURNAL   ENTRIES.  [SEC.  6128- 

of  his  appointment,  according  to  law,  it  is  now  ordered  that 
he  be  allowed  to  give  such  notice  forthwith. 

623.  (Sec.  6128.)     Order  to  distribute,  etc.,  on  bonds  being  given. 
[Title:] 

On  the  written  application  of  R.  T.  and  A.  D.,  tsvo  of  the 
distributees  of  the  above  estate,  it  is  ordered  that  the  admin- 
istrator be,  and  he  is  hereby,  authorized,  upon  the  execution 
to  him  by  the  said  distributees,  several]}^  of  undertakings 
in  the  sum  of dollars  each,  with  two  sureties,  to  be  ap- 
proved by  the  court,  to  divide  and  transfer  to  each  of  them 
one-fourth  part  of  all  the  bonds  and  stock  which  are  reported 
in  the  inventory,  and  such  portion  of  tlie  cash  as  he  deem 
expedient,  on  account  of  the  respective  distributive  share  of 
each.  Said  undertakings  to  be  conditioned  as  required  by 
section  6128  of  the  Revised  Statutes  of  Ohio. 

624.  (Sec.  6128.)      Order  for  distribution,  without  bond  being  re- 

quired. 

[Title.-] 

This  cause  coming  on  to  be  heard,  and  it  appearing  to  the 
court  that  the  report  and  account  of  W.  A.,  executor  of  the 
last  will  and  testament  of  II.  C,  deceased,  are  not  excepted 
to,  and  that  the  filing  of  the  same  has  been  advertised  and 
held  open  in  accordance  with  law,  the  court,  upon  exam- 
ination, allow  and  confirm  the  same.  And  it  further  ap- 
pearing to  the  court  that  all  of  the  debts  brought  to  the 
knowledge  of  such  executor  have  been  paid,  and  that 
there  is  no  probability  of  any  others  being  presented,  and  it 
further  appearing  to  the  court  that  each  and  all  of  the  lega- 
tees and  distributees  of  said  II.  C,  deceased,  have  demanded 
of  and  required  said  executor,  W.  A.,  to  make  payment  of 
the  whole  of  their  respective  legacies  and  bequests,  and  that 
all  of  the  estate  of 'the  said  II.  C,  deceased,  has  been  re- 
duced to  money,  the  court,  being  advised  in  the  premises,, 
deeming  it  unnecessary  that  said  legatees  and  devisees  should 
be  required  to  give  bond  to  said  executor  for  the  refunding 
of  the  amount  so  to  be  paid  to  them  respectively,  or  for  the 
indemnification  of  tlie  executor  against  loss  or  damage  on  ac- 
count of  such  payment,  do  hereby  relieve  them  from  giving 


-6131.]  EXECUTORS    AND    ADMINISTRATORS.  325 

said  bond,  and  release  the  exeeutor  from  any  and  all  liabil- 
ity l^y  reason  of  siicJi  payment. 

And  it  is  ordered  by  the  eourt  that  said  executor  proceed, 
immediately  after  the  payment  of  the  costs  of  administra- 
tion remaining  unpaid,  and  of  any  claim  or  debts  against 
the  estate  that  may  liave  been  presented  since  the  filing  of 
his  former  report,  or  tluit  may  come  to  his  knowledge  before 
this  distribution,  to  pay  to  tlio  legatees  and  devisees  the  re- 
spective legacies  and  shares  of  the  remainder  of  the  estate 
coming  to  them  ;  and  that  he  file  his  final  report  herein. 

Foreign  executors  and  aDiMinistrators — 

The  proceedings  by  section  G131  to  compel  a  foreign  executor  or  ad- 
ministrator residing  in  the  state  to  account  must  be  instituted  by  a  suit. 
The  orders,  on  liearing  of  the  petition,  may  be  similar  to  the  orders 
made  on  motion  against  an  executor  in  other  cases,  as  provided  in  sec- 
lion  (5178. 

625.  (Sec.  6131.)      Ordcr^  on  petition,  tliat  foreign  exicutor  render 
acconnt. 
[Title.-] 

This  cause  came  on  for  hearing  this  day  upon  the  petition 
[or,  pleadings]  and  the  evidence;  and  the  defendant  having 
had  duo  notice  of  tliis  proceeding,  the  court  find  that  the 
plaintiri'  is  entitled  to  the  relief  prayed  for  in  his  petition. 

It  is  therefore  ordered  that  said  defendant,  C\  I).,  as  exec- 
tor  of  the  estate  of  M.  D.,  late  of  Indiaiiai)olis,  Indiana,  de- 
ceased, make  and  file  in  this  eourt  within days,  as  ac- 
count showing  what  assets  or  property  are  in  his  hands  as 
such  executor. 

If  the  above  order  be  disobeyed  it  may  probably  be  enforced  by  at- 
tachment and  imprisonment.  In  which  case  make  entries  similar  to 
entries  Nos.  591  and  592. 

620.  (Sec.  6131.)      Order  distributing  amount  found  in  hands  of 
foreiqn  executor. 
[Title. -] 

It  appearing  to  the  court  that  there  is  in  the  hands  of  C. 
D.,  executor,  under  the  laws  of  Indiana,  of  the  last  will  and 


326  JOURNAL   ENTRIES.  [SEC.  6131- 

testament  of  M,  B.,  deceased,  the  sum  of  $ ,  belonging  to 

said  estate,  to  which  the  plaintiff  herein  is,  by  the  laws  of 
Indiana,  entitled  as  legatee  [or,  otherwise]  it  is  now  therefore 
ordered  that  the  said  C.  D.  pay  over  said  sum  to  the  plaintiff, 
A.  B.  [upon  a  refunding  bond,  to  the  approval  of  this  court, 
being  given  by  said  A.  B.  to  said  executor  for  its  return  to 
him  in  case  it  shall  be  needed  for  the  purpose  of  paying  debts 
of  said  estate.]^ 

[Add  order  as  to  costs.'] 

Action  for  injury  by  wrongful  death — 

This  is  a  civil  actiou,  and  the  usual  forms  may  be  used,  except  that, 
in  case  of  verdict  for  plaintiff,  the  verdict  and  judgment  should,  by 
section  6135,  find  and  direct  the  proportion  Avhich  each  beneficiary 
shall  receive. 

The  verdict  may  be  as  follows : 

"We,  the  jury,  find  on  the  issue  for  the  plaintiff,  and  assess 
damages  against  the  defendant  by  reason  of  the  premises  at 

dollars,  to  be  divided  among  the  beneficiaries  as  follows, 

to  wit :  To  the  said  widow  the  [yianie  proporivmatel  part  thereof: 
to  the  said  CD.  the  [iiame  'proportionate]  part  thereof,  etc. 
[Signed]  E.  M.,  Foreman. 

627.  (Sec.  6135.)     Judr/ment  on  last  verdict. 

[™r.] 

The  jury  having  heretofore  rendered  a  verdict  herein  for 

plaintiff  for  $ ,  and  no  motion  for  a  new  trial  having  been 

made  : 

It  is  now  therefore  adjudged  that' the  plaintifl"  recover  from 

the  said  defendant  the  said  sum  of  $ ,  together  with  his 

costs  herein  expended;  and  that  said  plaintiff  pay,  first,  the 

sum  of  $ ,  necessary  expenses  connected  with  his  action, 

and  distribute  the  balance  among  the  beneficiaries  named  in 
the  petition  in  the  proportion  found  l;)y  said  verdict. 

1  See  sec.  6131  as  to  when  this  will  be  required.  ' 


—5146.]  EXECUTORS    AND    ADMINISTRATORS.  327 

628.  (Sec.  6135.)     Order  that  administrator  settle  claim. 

{Title. 1 

It  appear-ing  to  the  court  that  E.  T.,  as  administrator  of  II. 
T.,  makes  a  claim  for  damages  against  the  C  X  and  T.  P.  C. 
Railroad  Company  for  causing  the  death  of  11.  T.,  the  de- 
cedent, and  that  said  company  pro[)Oses  to  settle  said  claim  for 

the  sum  of dollars,  and  that  no  suit  has  been  brought  on 

said  claim  ;  and  the  court  being  of  the  opinion,  from  the 
statements  of  said  administrator,  that  said  settlement  is 
proper  and  for  the  best  interests  of  the  parties,  he  is  liereby 
authorized  to  make  the  same,  in  full  satisfaction  of  all  claims 
and  demands  against  said  railway  company  by  reason  of  the 
death  of  the  said  decedent 

And  the  court  coming  now  to  apportion  said  sum  of  S 

among  the  beneficiaries,  finds  that  it  is  fair  and  equitable,  hav- 
ing reference  to  the  age  and  condition  of  such  beneficiaries, 
who  are,  etc.  [vame'],  that  said  amount  should  be  ajJiiortioned 

as  follows:    To   the  said   widow  the  sum  of   S ;   to  the 

said  M.  T.  the  sum  of  $ \_<iii<l  so  rotiiintie  to  each  benejici- 

arif].  Audit  is  ordered  that  the  said  sum  be  apportioned 
accordingly. 

Sale  of  real  estate  for  payment  of  debts,  and  distribution 
of  proceeds. 

These  proceedings  may  be  bad  iu  the  common  pleas  court  as  well  as 
in  the  probate.^  If  the  land  has  been  fraudulently  conveyed,  the  ex- 
ecutor may,  by  section  6140,  recover  the  same,  either  by  a  separate 
action  or  in  the  petition  to  sell  real  estate.  In  either  case,  the  decree 
may  be  in  the  form  of  Entry  No.  460,  modified  to  suit  the  case. 

So,  also,  the  proceedings,  if  begun  in  the  probate  court,  may  be 
taken  to  the  common  pleas  by  appeal.^  In  this  case,  the  entries  will 
be  the  same  as  if  the  case  had  begun  in  the  common  pleas,  except  that, 
iu  case  of  judgment,  the  opening  and  the  closing  of  the  entry  will  be 
iu  form  as  given  under  section  0410,  Entry  No.  779. 

629.  (Sec.  6146.)    Bond  approved,  and  order  for  sale  not  granted. 
[Title.'] 
A  petition  having  been  filed  herein  for  the  sale  of  real  es- 

>  See  sec.  6137.  ^  gee.  6407. 


328  JOURNAL    ENTRIES.  [SEC.  6147- 

tate  to  pay  the  debts  of  the  said  E.  F.,  deceased,  this  day 
came  F.  D.  and  gave  bond  to  the  administator  of  the  estate 

of  the  said  E.  F.,  in  the  sum  of  $ ,  with  II.  R.  and  T.  S. 

as  sureties,  to  the  approval  of  the  court,  conditioned  as  re- 
quired by  section  6146  of  the  Revised  Statutes ;  and  there- 
upon the  order  for  sale  is  not  granted. 

630.  (Sees.  6147  and  6153.)     Finding  sale  to  pay  debts  not  nec- 

essary. 
[Title.] 

This  cause  coming  on  for  hearing  on    the   petition,  and 

the  motion  to  dismiss  filed  by ,  and  the  matter  having 

been  fully  considered  by  the  court,  the  court  find  that  sale 
of  the  real  estate  for  the  payment  of  debts  is  not  necessary. 

It  is  therefore  ordered  that  the  cause  be  dismissed  at  the 
cost  of . 

Sale — where  there  is  no  homestead  or  dower  to  be  assigned. 

631.  (Sec.  6147.)     Sale    ordered  on  appraisement  contained  in 

the  inventory. 
{Title?[ 

This  cause  coming  on  this  day  to  be  heard  upon  the  peti- 
tion, proofs,  and  exhibits  [or  the  several  'pleadings  may  he  spe- 
cially named],  the  court  find  that  all  of  the  defendants  have 
been  duly  served  witli  process,  or  have  voluntarily  entered 
their  appearance  in  the  case ;  and  that,  as  set  forth  in  the  pe- 
tition, it  is  necessary  to  sell  the  real  estate  [or,  a  part  of  the 
real  estate]  tlierein  described,  to  pay  the  debts  of  the  said  E. 
F.,  deceased.  * 

It  is  therefore  ordered  and  adjudged  by  the  court  that  "W. 
P.,  executor  [or,  administrator]  as  aforesaid,  advertise  and 
sell  at  pul^lic  vendue  [on  the  }»remises],^  according  to  the  ap- 
praisement contained  in  the  inventory  returned  by  him  to 
the  probate  court,-  the  real  estate  described  in  the  petition 
[or  any  part  of  it  may  be  specified],^  on  the  following  terms,  to 

^  By  sec.  6101,  unless  otherwise  specially  ordered,  the  sale  will  be  made  at 
the  door  of  the  court-house. 
''Sec.  6154. 
'Bv  sees.  6147  and  6149. 


-0147.]  :3X:i:i;u':oii3  ljj>  aj^IxIs'istrators.  329 

wit :  one-third  cash,  the  balance  in  two  equal  installmentt., 
payable  in  one  and  two  years  respectively,  with  interest,  and 
secured  by  mortgage  on  the  premises'  [or  other  terms  as,  or- 
dered], and  that  the  said  W.  P.  make  due  return'  to  this 
court.^ 


Court  may  add  by  section  Glol  :] — 

And  it  is  further  ordered  that,  before  making  said  sale,  the 
executor  [or,  administrator']  give  an  additional  bond  in  the 

sum  of  $ ,  to  the  approval  of  this  court,  to  secure  the 

assets  arising  from  said  sale. 

In  case  a  uew  appraisement  is  to  be  made,  it  is  the  practice  in  Ham- 
ilton county,  in  all  cases,  to  have  it  made  and  returned,  and  approved 
by  the  court,  before  the  sale  isordered,  although,  liy  section  6154,  where 
there  is  no  dower  to  be  assigned,  the  order  for  the  appraisement  and 
sale  may  be  made  at  the  same  time. 

The  court  is  thus  enabled  to  maintain  a  more  careful  scrutiny  of  the 
proceedings. 

632.  (Sec.  ♦)147.)     New  appraisement  ordered. 

[Title.] 

As  i)i  (est  to  *,  a7id  continue:] — 

It  is  therefore  ordered  and  adjudgea  by  the  court  that  the 
real  estate  described  in  the  petition  [or  any  part  of  it  may  he 
described]^  be  appraised*  l)y  the  oaths  of  T.  K..  H.  F.,  and  J. 
II.,  judicious  and  disinterested  freeholders  of  the  vicinity, 
whom  the  court  hereby  appoint  for  that  purpose,'^  and  that 
they  return  their  proceedings  to  this  court  for  confirmation. 

1  By  sec.  G162. 

2  By  sec.  Gl-5o.  a  copy  of  this  decree  must  be  issued  to  the  executor  or  admin- 
istrator. 

3  By  sec.  6149. 
*  By  sec.  6154. 
»  By  sec.  6155. 


330  JOURNAL   ENTRIES.  [SEC.  6147- 

And  it  is  further  ordered  by  the  court  that  W.  B.,  J.  L.^ 
and  C.  B.,  three  judicious  and  disinterested  men,  freehold- 
ers of county,  Ohio,  after  being  duly  sworn,  appraise 

the  premises  secondly  described  in  said  petition,  located  in 
said county,  and  make  due  return  to  this  court. 

633  (Sec.  6147.)  Appraisement  ordered,  in  case  xoidow  his 
waived  dower  by  m.etes  and  hounds} 

[  Title:\ 

As  in  No.  631  to  *,  and  continue {] — 

And  A.  F.,  the  widow  of  the  said  E.  F.,  having,  by  her 
answer,  waived  the  assignment  of  her  dower  by  metes  and 
bounds,^  it  is  therefore  ordered  and  adjudged  by  the  court 
that  the  said  premises  be  appraised,  free  of  dower,  by  the 
oaths  of  T.  K.,  H.  F.,  and  R.  M.,  judicious  and  disinterested 
freeholders  of  the  vicinity,  whom  the  court  hereby  appoint 
for  that  purpose,^  and  that  they  return  their  proceedings^  to 
this  court  for  confirmation. 

\_If  any  property  is  in  another  county,  see  last  entry  for  ap- 
pointment of  officers.'] 

634.   (Sec.  6147.)     Appraisement  confirmed  and  decree  for  sale. 

[Title.'] 

Now  comes  N.  J.  &  C,  counsel  for  R.  M.,  adniiuistrator  as  above 
named,  and  produce  to  the  court  the  appraisement  herein  made  of  the 
real  estate  described  in  the  petition  herein,  by  T.  K.,  H.  F.,  and 
R.  M.,  in  pursuance  of  a  former  order  of  this  court,  and  it  appearing 
upon  examination  that  said  appraisement  is  in  all  respects  regular  and 
correct,  the  same  is  hereby  approved  and  confirmed. :J:  And  it  is 
ordered  that  W.  P.,  executor  [or,  administrator]  as  aforesaid,  advertise 
and  sell  the  real  estate  aforesaid  [free  of  dower]  at  public  vendue  [on 
the  premises],*  on  the  following  terms,  to  wit:  one-third  cash,  the 
balance  in  two  equal  installments,  payable  in  one  and  two  years 
respectively,  with  interest,  and  secured  by  mortgage  on  the  premises 
[or  other  terms  as  ordered],  and  that  the  said  W.  P.  make  due  return^  to 
this  court. 

CouH  may  add  by  sec.  6151:]^— 
And  it  is  further  ordered  that  before  making  said  sale  the  executorp^, 
administrator]  give  an  additional  bond  in  the  sum  of  $- ,  to  the  ap- 
proval of  this  court,  to  secure  the  assets  arising  from  said  sale.         

1  Bv  sec.  5719.  As  amended  April  3,  1889,  86  v.  185,  this  section  is  made  to 
perta"in  to  the  dower  of  a  widower  as  well  as  of  a  widow.  This  and  subsequent 
entries  my  be  modified  accordingly. 

2  By  sec.  6155.  ^  By  sec.  6157. 
*  By  sec.  6161.  *  By  sec.  6162. 


-6155.]  EXECUTORS    AND   ADMINISTRATORS.  331 

Sale  where  there  is  dower  to  be  assigned — 

635.  (Sec.  6155;  83  v.  105.)      Order  for  assignment  of  dower, ^  and  ap- 

praisement of  premises. 

[ruie.~\^ 

As  in  No.  631,  to  ^  and  continue:^ — 

And  it  appearing  to  the  court  that  A.  F.,  the  widow*  of  E.  F.,  de- 
ceased, is  entitled  to  dower  in  said  premises,  it  is  hereby  ordered  that 
T.  R.  P.,  H.  F.  M.,  and  J.  H.,  judicious  and  disinterested  freeholders 
of  the  vicinity,  after  being  duly  sworn,  set  off  and  assign  the  same  in 
the  wliole  of  said  lands  [or,  in  each  of  said  tracts  of  land;  or  it  may 
all  be  assigned  from  one  tract^  and  apjjraise  said  premises,  either  as  a 
whole  or  in  parcels,  subject  to  such  dower  so  assigned;  and  that  they 
return  their  proceedings^  to  this  court  for  confirmation. 

636.  (Sec.  6155;  83  v.  105.)     Assignment  of  dower  by  metes  and  bounds, 

and  appraisement  of  premises  confinnedy 
and  decree  for  sale. 

[Title.] 

And  now  this  cause  coming  on  to  be  heard  on  the  return  of  T.  K.  P., 
H.  F.  M.,  and  J.  H.,  of  their  proceedings  in  the  assignment  of  dower 
and  appraisement  of  premises  under  the  former  order  of  this  court, 
the  court  being  fully  advised  in  the  premises,  find  said  proceeding  to 
be  in  all  respects  in  conformity  to  law,  and  they  are  hereby  approved 
and  confirmed. 

It  is  therefore  ordered  and  adjudged  that  the  said  A.  F.  liave  and 
possess  the  lands  so  assigned  to  her,  to  wit  \_describe'\,  as  and  for  her 
dower  in  said  premises.:}:  And  it  is  ordered  that  said  plaintifi'  pro- 
ceed, according  to  law,  to  advertise  and  sell  said  real  estate,  subject  to 
said  dower  interest  of  the  said  A.  F.,  upon  the  following  terms,  to  wit 
Instate  terms  of  sale'\,  [and  that  said  sale  take  place  upon  the  premises].^ 
And  it  is  ordered  that  said  executor  make  due  return  of  his  proceed- 
ings to  this  court. 

[27ie  clause  ordering  additional  bond  as  after  decree  Xo.  631,  7yiay  be 
added  here.'\ 

637.  (Sec.  6155;    83  v.   105.)      Assignment  of  dower,  as  of  rents  and 

profits,  and  appraisement  of  premises 
confirmed,  and  decree  for  sale. 

[Title.'] 

And  now  this  cause  came  on  for  hearing  upon  the  return  of  T.  K. 
P.,  H.  F.  M.,  and  J.  N.,  of  their  proceedings  in  the  assignment  of 
dower  and  appraisement  of  premises  under  the  former  order  of  this 
court ;  and  it  appearing  that  said  dower  has  been  assigned  as  of  the 

rents  and  profits  in  the  annual  sum  of dollars,  the  court  find  all 

of  said  proceedings  in  all  respects  in  conformity  with  law,  and  they 
are  hereby  approved  and  confirmed. 

It  is  therefore  adjudged  by  the  court  that  the  said  A.  F.  stand  en- 
dowed of  the  rents,  issues,  and  profits  of  the  said  premises,  in  the 
annual  sum  of  $ .     And  the  said   premises  are  hereby  charged 

» See  note  1,  p.  330.  ^By  sec.  6157.  sgy  sec.  6161. 


332  JOURNAL   ENTRIES.  [SEC.  6155- 

■n  ith  the  payment  of  the  same,  on  the day  of -,  of  each  and 

every  year  of  the  natural  life  of  the  said  A.  F.^  [coyidude  as  from  tj:  in 
last^. 

Sale  where  homestead  is  to  be  set  off — 

637a.   (Sec.  6155;  83  v.  105.)     Order  for  setting  off  homestead,  and  for 

appraisement. 

[Title.'] 

As  in  No.  631  to  :J:,  and  contimie:'] — 

And  it  appearing  to  the  court  that  the  said  E.  F.,  deceased,  left  a 
family  homestead,  and  api:)lication^  having  been  made  by  \_undow  or 
minor  cJiild]  to  have  the  same  set  apart  to  her  [or,  him]  the  court  find 
that  she  [or,  he]  is  entitled  thereto.  It  is  therefore  ordered  that  T.  R., 
H.  F.,  aud  J.  H.,  judicious  and  disinterested  freeholders  of  the  vicin- 
ity, after  being  duly  sworn,  first  set  off  and  assign  such  homestead  to 

the  said ,  uot  exceeding  in  value  the  sum  of  $ ^^,  and  then 

appraise  said  premises  subject  to  such  homestead,  and  return  their 
proceedings  to  this  court  for  confirmation. 

637&.   (Sec.  6155.)     Appraisement  confirmed,  and  decree  jor  sale. 

[Title.'] 

As  in  No.  634  to  tj:  and  continue ;] — 

Aud  it  is  ordered  that  U.  P.,  executor  [or,  administrator]  as  afore- 
said, advertise  and  sell  the  real  estate  appraised  as  aforesaid  at  public 
vendue  [may  be  on  the  premises]*  on  the  following  terms,  to  wit :  one- 
third  cash,  the  balance  in  two  equal  installments,  payable  in  one  and 
two  years  respectively,  with  interest,  and  secured  by  mortgage  on  the 
premises  [or  other  terms  as  ordered^,  and  make  due  ret\irn  to  this  court. 

Sale  where  both  homestead  ast>  dower  are  to  be  assigned. 
637c.   (Sec.  6155;  83  v.  105.)      Order  for,  and  for  appraisement. 

[Title.] 

As  in  No.  637a  to  tj:  and  continue:] — 

And  it  also  appearing  that  A.  F.,  the  widow  of  E.  F.,  deceased,  is 
entitled  to  dower  in  said  premises,  it  is  hereby  ordered  that  the  ap- 
praisers hereinabove  named  also  before  appraising  said  premises  set  off 
and  assign  to  her,  by  metes  and  bounds,  one  equal  third  part  of  said 
lands  as  and  for  such  dower,  and  that  subject  to  such  homestead  and 
dower  they  appraise  said  premises,  and  return  their  i:)roceedings  to  this 
court  for  confirmation. 

[The  decree  of  confirmation  may  he  in  the  form  of  entry  No.  636  or  637.] 

In  general — 

638.   (Sec.  6156.)     Order  substittding  appraiser. 

[Title.] 

It  appearing  to  the  court  that  L.  M.,  one  of  the  appraisers 
appointed  herein,  is  unable  by  reason  of  sickness  [or  other 
cause]  to  discharge  his  duties  as  such,  R.  T.,  a  judicious  dis- 

1  By  sec.  6144.  ^  See  sees.  5437  et  seq. 

3  See  sees.  5438  and  5440.  *  By  sec.  6161. 


-6161.]  EXECUTORS    AND    ADMINISTRATORS.  333 

interested  man  of  the  vicinity,  is  liereby  appointed  as  an  ap- 
praiser in  his  stead,  under  the  former  decree  of  the  court 
herein. 

639.  (Sec.  6160.)     Order  directing  sale  for  certain  amount. 
[Title:] 

It  appearing  to  the  court  that  the  real  estate  herein  ordered 
to  be  sold  lias  been  twice  ottered  for  sale  under  the  present 
appraisement,  iiiid  not  sold  for  want  of  bidders,  it  is  now,  on 
motion,  ordercMl  *  that  said  real  estate  may  be  sold  for  the 
sum  of dollars. 

640.  (Sec.  6160.)      Order  for  new  a/pproisement. 
[Title.] 

As  in  last  to  ^,  "tid  continue:] — that  said  appraisement  be 
set  aside,  and  a  re-appraisement  of  the  same  be  made  by  the 
oaths  of  G.  n.,  K.  AV.,  and  L.  E.,  judicious  and  disinterested 
freeholders  of  the  vicinity,  whom  the  court  hereby  appoint 
for  that  purpose. 

Private  sale — 

641.  (Sec.  6161.)     Decree  for  i^rivatc  sale. 
[Title.] 

[If  the  order  for  private  sale  is  made  in  the  first  instance,  make 
the  etitri/  <ts  in  Nos.  631,  634,  636,  or  (i^l ,  according  to  circum- 
stances, to  *,  a)id  continue  as  follows :] — 

And  it  appearing  to  the  court  that  it  would  be  more  to  the 
interest  of  said  estate  to  sell  the  real  estate  described  in  the 
petition  at  private  sale,  ^  it  is  therefore  ordered  and  decreed 
by  the  court  that  the  said  T.  L.,  administrator,  proceed  to 
sell  said  premises  [free  of  dower]  according  to  law,  at  private 
sale,  for  not  less  than  the  appraised  value,  and  upon  the  fol- 
lowing terms,  to  wit  [state  terms]  ;  and  that  he  report  his  pro- 
ceedings hereunder  immediately  after  such  sale  is  made. 

Court  may  add  by  sec.  6151] 

And  it  is  further  ordered  that  before  making  said  sale  the 
executor  [or,  administrator]  give  an  additional  bond  in  the 
sum  of  $ to  secure  the  proceeds  of  said  sale. 

90 


334  JOURNAL   ENTRIES.  [SEC.  6161- 

642.  (Sec.  6161.)     Order  for  piivate  sale,  after  appraisement  con- 

firmed. 

[Title.'] 

This  cause  coming  on  this  day  to  be  farther  heard,  and  it 
appearing  to  the  court  that  the  apparisement  heretofore  or- 
dered to  be  made  in  tliis  case  has  been  made,  and  confirmed 
by  this  court,  and  it  further  appearing  from  evidence  pro- 
duced that  it  woukl  be  to  the  interest  of  said  estate  to  sell 
the  real  estate  described  in  the  petition  at  private  sale  [con- 
clude as  front  *  in  last  entry]. 

643.  (Sec.  6161.)     Order  for  p>rivatescde,  on  report  of  offer  made. 
[TUle.] 

This  cause  came  on  this  day  to  be  heard  upon  the  report 
of  the  plaintiflf  that  he  has  had  an  oft'er  for  the  real  estate  in 
the  petition  described  from  W.  E.  P.,  to  purchase  the  same 
at  private  sale  for  the  sum  of dollars ;  and  it  further  ap- 
pearing to  the  court  by  testimony  oiFcred  that  it  will  be  more 
to  the  interest  of  said  estate  to  sell  such  real  estate  at  private 
sale,  and  that  the  said  offer  for  the  same  is  more  than  the 
appraised  value  thereof,  it  is  hereby  ordered  and  adjudged 
that  the  said  executor  sell  said  real  estate  at  private  sale  to 
said  AY.  E   P.  for  said  sum  of  | . 

Confirmation  of  sale  and  distribution  of  proceeds — 

644.  (Sec.  6162.)     Decree  of  confirmation  of  sale,  and  distribu- 

bution  of  py'oceeds. 

[Title.] 

This  cause  now  coming  on  to  be  heard  on  the  return  of 
W.  P.,  executor  [or,  administrator],  of  his  proceedings  and 
sale  under  the  order  of  this  court,  the  court,  after  having 
carefully  examined  said  return,  being  satisfied  that  such  sale 
has  in  all  respects  been  legally  made,  does  hereby  approve 
and  confirm  the  same,  and  order  that  the  said  W.  P.,  as 
such  executor  [or,  administrator],  make  to  the  purchaser.  L. 
M.,  a  good  and  sufficient  deed  for  the  premises  so  sold.  * 

And  the  court  coming  now  to  distribute  the  proceeds  of 
said  sale  in  the  hands  of  the  said  W.  P.,  order  that  he  pay : '' 

1  By  sec.  G1G5. 


-6165.]  EXECUTORS    AND    ADMINISTRATORS.  33o 

First.  The  costs  of  this  action,   including  $ ,   as  the 

charges  due  the  executor  herein,  taxed  at  $ . 

Secondly.  The  court  find  that  the  mortgage  to  P.  L.,  set 
up  in  his  answer  and  cross-petition,  is  the  first  and  best  lien 
on  the  premises  sold,'  and  that  there  is  due  thereon  the  sum 

of  $ .     It  is  therefore  ordered  that  said  executor  pay  next 

to  the  said  P.  L.  the  said  sum  of  $ . 

Thirdly.  It  is  ordered  that  said  executor  pay  next  the 
claim  of  R.  AV.,  amounting  to  S . 

[Condade  distribution  according  to  priorities.] 

645.  (Sec.  6162.)     Decree  of  confirmation  and  distribution  after 

private  sale. 
[Tdle.-] 

This  cause  came  on  this  day  to  be  heard  upon  the  report 
of  the    plaintiff  of  sale    made   to  AV.  E.  P.  for  the  sum  of 

$ ,  as  hereinbefore  ordered,  and  the  proceedings  appearing 

in  all  respects  regular  and  in  t-oiiformity  to  the  law,  they  are 
hereby  approved  and  confirmed.  And  the  said  J.  AV.  A., 
executor  of  E.  A.,  is  ordered  to  execute  and  deliver  to  the 
said  purchaser  a  good  and  sufiicient  deed  for  the  premises  so 
sold.  * 

\_Concladc  as  from  *  in  last  decree. 1 

646.  (Sec.  6162.)     Decree  of  confirmation  and  distribution  ivhere 

doicer  by  metes  and  bounds  ivas  ivaived. 

[Title.] 

As  in  No.  644  to  *.  and  continue  .•] — 

And  the  said  J.  B.  having  by  his  answer  elected  to  re- 
ceive in  lieu  of  her  dower  its  value  in  money,  the  court  find 
the  just  and  reasonable  value  thereof  to  be dollars. 

And  the  court  coming  now  to  distribute  the  proceeds  of 
said  sale  in  the  hands  of  said  executor,  orders  that  he  pay  : 

First.  The  costs  of  this  action,  including  § ,   as   the 

charges  due  the  executor,  taxed  at  8 . 

Secondly.  It  is  ordered  that  said  executor  pay  to   said  J. 

B.  the  said  sum  of  $ ,  in  lieu  of  her  dower,  as  above 

found  by  the  court. 

'See  sees.  61-15  and  6165. 


336  JOURNAL    ENTRIES.  [SEC.  6166- 

Thirclly.  \_Continue  distribution  as  in  decree  Ko.  644]. 

647.  (Sec.  6166.)     Sale  of  equitable  interest  ordered. 

[7iHe.] 

This  cause  coming  on  this  day  to  be  heard  upon  the  peti- 
tion, proofs,  and  exhibits  [^or  the  several  jjleadings  may  be  spe- 
cially named^,  the  court  find  that  all  of  the  defendants  have 
been  duly  served  with  process,  or  have  voluntarily  entered 
their  appearance  \n  the  case.  The  court  further  find  that 
there  is  not  suflicient  personal  property  to  pay  the  debts  of  the 
said  E.  F.,  deceased,  and  that  he  was  at  the  time  of  his  death, 
as  set  forth  in  the  petition,  the  owner  of  an  equitable  inter- 
est, to  wit  \_describe'],  in  the  real  estate  described  in  the  peti- 
tion, and  that  it  is  necessary  to  sell  the  same,  for  the  pay- 
ment of  such  debts. 

It  is  therefore  ordered  and  adjudged  by  the  court  that  the 
equitable  interest  as  aforesaid,  free  of  all  dower  interest  of 
A.  F.,  widow  of  the  said  E.  F.,  be  appraised  by  the  oaths  of 
T.  K.  P.,  11,  F.,  and  E.  M.,  judicious  and  disinterested  free- 
holders of  the  vicinity,  whom  the  court  hereby  appoint  for 
that  purpose,  and  that  they  return^  their  proceedings  to  this 
court  for  confirmation. 

The  decree  confirming  appraisement  and  ordering  sale  may  be  in 
the  form  of  Entry  No.  634,  substituting  equitable  interest  for  real 
estate.  The  decree  confirming  sale  and  ordering  distribution  is  in  the 
following  form  : 

647«.  (Sec.  6166.)  Sale  of  equitable  interest  confirmed,  and.  or- 
der for  distribution. 

[Title:] 

As  in  Entry  No.  644  to  *.  and  continue^: — 

And  the  court  coming  now  to  distriV^ute  tlie  proceeds  of 
said  sale,  find  that  the  value  of  a  life  annuity,  to  the  said  A. 
F.,  in  one-third  of  such  equitable  estate,  in  lieu  of  her  dower 
interest  therein,  is dollars. 

It  is  therefore  ordered  that  the  executor  pay  : 

First,  The   costs    of  this   action,   including   $ ,   as  the 

charges  due  the  executor,  taxed  at  § . 

Secondly.  To  the  said  A.  F.,  widow,  the  said  sum  of  % , 

so  found  due  her  as  above,  in  lieu  of  her  dower  interest. 


-6178.]  EXECUTORS    AND    ADMINISTRATORS.  337 

Tliii'dly.  [Continue  (/istribufion,  if  there   are   any  liens  to  be 
paid,  off,  as  in  decree  No.  644]. 

648.  (Sec.  6168.)     Copy  of  appointment  of  foreign  executor  fled. 
[Tit/e.] 

Now  comes  F.  E.,  and  files  in  court  an  authenticated  copy 

of  liis  appointment  in  the  county  of ,  State  of ,  as 

executor  of  the  estate  of  L.  D.,  tos^ether  with  an  authenti- 
cated copy  of  the  will  of  the  said  L.  D.,  deceased. 

The  account  and  compensation  op  an  executor  or  adminis- 
trator ;  AND  distribution  in  certain  cases — 

649.  (Sec.  6175.)     Account  current  of  administrator  fled  and 

suspended. 
[Title.'] 

This  day  came  the  administrator  herein,  and  presented  an 
account  current,  wliieh  is  ordered  filed  and  suspended. 

650.  (Sec.  6175.)     Final  account  of  administrator  filed  ayid  sus- 

pended. 
[Title.] 

This  day  came  the  administrator  herein,  and  presented  a 
final  account,  which  is  ordered  filed  and  suspended. 

Soc.  0178.  To  compel  an  executor  or  administrator  to  render  his  ac- 
count, entries  may  be  made  in  same  form  as  Nos.  590,  591,  and  593. 

651.  Account  allowed  and  confirmed,  and  order  of  distribution. 
[Title.] 

This  matter  came  on  to  be  heard  on  the  motion  of  V.  J., 
attorney  for  the  executor  of  the  above-named  decedent,  to 
c-onfirm  the  account  filed  February  20,  1881 ;  and  the  court 
Hnding  that  the  same  was  duly  published  as  required  l)v  law, 
and  no  exception  beiiii^  filed  to  the  same,  and  having'  exam- 
ined the  said  account  and  found  it  in  all  respects  correct,  it 
is  hereby  allowed  and  confirmed. 

And  the  court  now  coming  to  the  distribution  of  the  money 
on  hand  as  reported  by  the  executor  aforesaid,  find  that  there 
has  been  paid  to  L.  J.,  the  son  of  tlie  testator,  to  date  by  said 

executor  the  sum  of  | ,  and  to  M.  J.,  daughter  of  said 

testator,  the  sum  of  $ ,  and  that  there  is  still  due  to  L.  J. 


338  JOURNAL    ENTRIES.  [SEC.  6179- 

the  further  sum  of  | ,  and  to  M.  J.  the  further  sum  of 

$ ;  and  the  court  find  that  there  is  due  to  S.  J.,  widow 

of  A.  J.,  the  testator,  the  sum  of  $ .  It  is  therefore  or- 
dered that  said  executor  pay  the  sums  above  found  to  the 
parties  respectively,  and  report  the  vouchers  therefor  to  this 
court. 

The  order  of  distribution  will,  of  course,  often  be  made  as  a  separate 
entry. 

652.  Suspended  account  alloived  and  confirmed. 
[Title.] 
The  account  of  the  executor  herein  heretofore  on  the 


day  of ,  18 — ,  filed  and  suspended,  was  this  day,  after 

being  examined,  duly  allowed  and  confirmed. 

When  several  accounts  are  examined  and  allowed  at  the  same  time, 
the  order  may  be  entered  as  follows : 

658.    Various  accounts  and  vouchers  allowed  and  confirmed. 

[Title.] 

The  following  accounts  and  vouchers  of  executors,  ad- 
ministators,  guardians,  and  assignees,  heretofore  filed  and 
suspended  herein,  were  this  day  examined  and  duly  aPowed 
and  confirmed,  to  wit : 

EXECUTORS  AND  TRUSTEES. 

23,722.     A.  S.     Filed  and  suspended,  October  3,  1881. 
etc.  etc. 

ADMINISTRATORS. 

21,061.     J.  B.     Filed  and  suspended,  August  17,  1881. 

etc. 

GUARDIANS. 

20,203.     R.  P.     Filed  and  suspended,  October  12,  1881. 

etc. 


-6186.]  EXECUTORS    AND    ADMINISTRATORS.  339 

ASSIGNEES. 

r.  II.  s. 

etc. 

'654.  Accounts  of  administrator  confirmed,  on  exceptions  heard. 

[11116.-] 

This  cause  coming  on  to  be  lieard  on  the  account  of  M. 

P.,  administrator,  tiled ,  18 — ,  and  the  exceptions  thereto, 

the  court,  u})Oii  due  consideration  thereof,  *  find  that  said 
exceptions  are  not  well  taken,  and  that  said  account  is  in  all 
respects  correct  and  according  to  law,  and  do  hereby  approve 
and  confirm  the  same. 

\^jidd  any  order  inadc  as  to  costs!] 

655.  Account  disallowed. 
[Title.] 

,  As  in  last  to  *,  <nid  continue:] — tind  the  exceptions  well 

taken  in  tliis,  that  amount  of  S .  charged  for  <3ommission 

on  the  sale  of  the  house  on  street,  is  incorrect,  and  is 

disallowed ;  hut  in  all  other  respects  said  account  is  found  to 
be  correct,  and  is  allowed  and  confirmed. 
[Add  any  order  made  as  to  costs.] 

656.  Excejjtions  vithdrawn. 
[Tdle.] 

On  motion  of  T.  C,  attorney  for  W.  M.,  the  exceptions 
heretofore  filed  by  him  to  administrator's  account  are  hereby 
withdrawn  by  leave  of  court. 

657.  (Sec.  6186.)     Account  referred  to  a.  special  commissioner. 
[Title:] 

As  iu  No.  654  to  *,  and  continue:] — refer  the  same  to  T.  S., 
Avho  is  hereby  appointed  a  special  commissioner  to  examine 
said  account,  and  report  to  this  court. 

On  coming  in  of  the  report  it  may  be  confirmed,  and  the  account 
allowed  or  disallowed  accordingly. 


340  JOURNAL  ENTRIES.  [SEC.  6187- 

658.  (Sec.  6187,  81  O.  L.  137.)     Order  opening  settled  account. 
[Title.'] 

It  appearing  to  the  court  that  the  accounts  of  E.  T.,  ad- 
ministrator of  the  above  estate,  were  settled  in  the  absence 
of  A.  S.,  and  without  actual  notice  to  him,  and  that  he  has 
filed  exceptions  to  said  account,  it  is  now  ordered  that  said 
account  be  opened  for  the  hearing  and  consideration  of  the 
exceptions  named. 

Sec.  6188.  It  is  the  practice  of  the  Probate  Court  of  Hamilton 
county  not  to  make  a  special  order  allowing  the  regular  compensation 
to  executors  and  administrators,  but  to  require  them  to  state  their  com- 
pensation as  an  item  of  their  accounts,  and  then,  if  no  exception  is 
taken,  it  is  confirmed  with  the  other  items  of  the  account. 

659.  (Sec.  6188.)     Allowance  for  expenses  and  special  services. 
[Title.'] 

On  motion  of  A.  R.,  the  executor  herein,  and  it  appearin* 
just  and  proper,  he  is  hereby  allowed  out  of  the  estate  above 

named  the  sum  of  $ for  expenses  incurred  by  him  in 

[specify],  and  also  the  sum  of  ^ for  services  as  attorney 

rendered  to  said  estate. 

660.  (Sec.  6189.)     Order  for  distribution  of  notes,  bonds,  etc. 
[Title.] 

The  executor  herein  having  paid  all  the  debts  of  the  said 
estate,  and  having  remaining  in  his  hands  certain  notes  and 
bonds  belonging  to  the  estate,  it  is  now  ordered  by  agreement 
of  all  parties  interested  that  said  executor  distribute  said 
notes  and  bonds  among  tlie  distributees  of  said  estate  as  fol- 
lows, to  wit,  to  E.  S.  the  note  of  W.  M.,  dated  ,  18 — , 

for  $ ,  payable  in years  from  date  to  S.  T.,  etc. 

661.  (Sec.  6190.)     Account  of  payments  filed  and  allowed  as  fnal 

discharge. 
[Title.] 

Xow  comes  the  executor  of  the   above-named    decedent,^ 

(and  presents  to  the  court  an  account  of  his  payments  made 

to  the  distributees  according  to  the  order  of  the  court  ;  and 

said  account  being  duly  pi-ovoil  to  tlie  satisfaction  of   the 


-6195.]  EXECUTORS  AND  ADMINISTRATORS.  341 

court,  and  veiified  by  the  oath  of  said  executor,  it  is  ordered 
that  it  \)e  allowed  as  the  final  discharge  of  said  executor,  and 
be  recorded  in  this  court. 

662.  (Sec.  6191,  81  O.  L.  189.)     Order  for  investment,  etc.,  of 

luidaii/ied  money. 

[  Title] 

It  appearing  to  the  court  that  T.  II.,  the  executor  of  S.  S., 

deceased,  has  in  his  hands  the  sum  of  $ ,  which   lie  was 

ordered  to  pay  to  the  heirs  of  R.  S.,  but  which  has  for  more 
than  six  months  been  unclaimed,  it  is  hereby  ordered  that 
said  executor  invest  said  sum  in  [^iiame  securities], 'u\  the  name 
of  J.  B.  M.,  judg(!  of  this  court,  for  the  time  being,  and  hold 
the  same  subject  to  the  further  order  of  court.  \^0r,  that  said 
executor  pay  said  sum  into  the  county  treasury  for  thebenefit 
of  the  person  entitled  thereto. 

663.  (Sec.  6192,  81  O.  L.  139.)    Order  for  prn/ment  to  distributee. 
[Title.] 

Now  comes  S.  1\.,  and  proves  to  the  satisfaction  of  the  court 
tiiat  he  is  the  sole  heii'  of  1\.  S.,  and  one  of  the  distributees  of 
the  estate  of  S.  S.,  and  the  i>art  of  the  same  belonging  to  him 
having  l)cen  invested  by  order  of  court  in  [_name  securities], 
[or,  turned  into  the  county  treasury],  it  is  now  oi-dered  that 
they  [or,  it]  be  turned  over  and  ti'ansfori'ed  to  him  as  such 
distributee.  [In  euse  of  money  add,  and  that  lie  receive  a  war- 
rant tiicrefor  from  the  county  auditor.] 

For  an  order  to  invest  money  pending  suit,  etc.,  see  Entry  No.  780, 
page  384. 

664.  (Sec.  6195.)     Citation  issued  against  executor  or  adminis' 

trator,  for  failing  to  j^ay  money. ^ 

[Tifh,] 

On  petition  of  L.  W.,  and  it  appearing  to  the  court  that 

heretofore,  by  order  entered  on  the day  of ,  18— r, 

the  assignee  herein  was  ordered  to  pay  from  the  assets  in  his 

hands  the  sum  of  $ to  L.  W.,  and  it  appearing  that  said 

assignee,  though  frequently  requested,  has  refused  to  pay  said 
sum,  it  is  therefore,  on  motion  of  A\".  T.,  attorney  for  F.  S., 
ordered  that  a  citation  issue  to  said  assignee,  E.  B.,  return- 
able on  the day  of ,  18 — ,  at  10  o'clock   a.  m.,  for 

'  May  be  made  in  common  pleas  or  probate  court,  by  sec.  6200. 


342  JOURNAL    ENTRIES.  [SEC,  6196- 

him  to  show  cause  why  judgment  shouki  not  be  rendered  and 
execution  awarded  against  him  for  failure  to  comply  with 
said  order. 

665.  (Sec.  6196.)      Orde?^  for  publication  against  non-resident,^ 

executor,  etc. 

[Title.] 

R.  M.,  the  defendant  herein,  being  a  non-resident  of  the 
State  of  Ohio,  it  is  ordered  that  he  be  brought  into  court  by 
publication  to  be  made  in  the  Cincinnati  Daily  Gazette,  ac- 
cording to  law,  as  provided  in  sec.  6196  of  the  Revised  Stat- 
utes. 

Sec.  6197.  Judgment  under  this  section  may  be  in  the  ordinary  form 
of  judgment  in  civil  actions. 

666.  (Sec.  6198.)     Amended  or  supplemental   petition    allowed'^ 

making  new  jparties. 

ITitle.] 

It  appearing  to  the  court  that  for  the  purpose  of  making 
distribution  of  the  above-named  estate,  it  is  necessary  to 
determine  whether  [state  question],  and  that  there  are  other 
parties  in  interest  who  should  have  notice  of  this  proceed- 
ing, it  is  now  ordered  that  the  plaintiff  file  an  amended  [or, 
supplemental]  petition,  making  the  following-named  persons 
parties  hereto,  viz.  [give  names],  and  that  a  citation  issue  on 
said  amended  [or,  supplemental]  petition,  returnable  accord- 
ing to  law. 

667.  (Sec.  6198.)     Finding  and  order  on  submitted  question.^ 
[Title.] 

This  matter  now  coming  on  to  be  heard,  the  court  find  that  all 
parties  interested  are  properly  before  the  court ;  and  the  ques- 
tion being  submitted  to  the  court  wliether  [state  questioii],  and 
the  testimony  being  heard,  the  court  having  duly  considered 
the  same,  find  [state  finding]. 

It  is  therefore  ordered  that  the  said  W.  M.  be  charged  with 
the  said  sum  of  $ ,  in  settling  and  distributing  said  estate 

1  May  be  made  in  common  pleas  or  probate  court,  by  sec.  6200. 


-6202.]  EXECUTORS    AND    ADMOTISTRATORS.  34b 

[^or  other  order],  and  that  pay  the  costs  of  this  proceed- 
ing. 

668.  (Sec.  6198.)     Same,  hy  agreement} 
[Title.'] 

This  matter  came  on  this  day  to  be  heard  on  the  agree- 
ment in  writing  now  tiled  herein,  made  by  the  administra- 
tor of  said  estate  and  the  next  of  kin  and  distributees  thereof, 
viz.  \_name  jiarties],  submitting  to  the  award  and  decision  of 
tlie  judge  of  this  court,  as  referee,  whether  [state  question]. 
And  all  said  parties  l)eing  present,  and  the  testimony  heard, 
the  court,  having  dul\'  considered  the  same,  tind  and  award 
that  [state  fitK/iiit/]. 

It  is  tliereforc  ordered  that  the  said  W.  M.  l>e  charged  with 

said  sum  of  $ ,  in  settling  and  distributing  said  estate  [or 

other  order],  and  that }»ay  the  costs  of  this  proceeding. 

669.  (Sec.  6199.)     Order  reserving  case  to  common  pleas  court. 
[Title.] 

On  motion  of  ,  one  of  the  parties  hereto,  this  case  ia 

reserved  to  the  Court  of  Common   l^leas  of  tliis  county  for 
hearing  and  decision  u})on  [state  question  or  matter  reserved']. 

670.  (Sec.  6202.)     Judgment   construing  any  matter  respecting 

the  estate. 

[Title.]  I 

And  now  this  cause  came  on  to  be  heard  on  the  petition 
of  the  plaintiii',  asking  for  the  direction  and  judgment  of 
the  court  in  construing  certain  parts  of  the  will  of  L.  M.,  of 
which  said  plaintifi'  is  executor,  and  upon  certain  questions 
presented  in  said  petition,  and  upon  the  answers  of  C.  D. 
and  E.  F.,  all  of  the  other  defendants  being  in  default  for 
pleading. 

And  thereupon  the  court,  after  careful  consideration,  find 
and  adjudge  the  true  intention  and  construction  of  said  will 
to  be  as  follows,  to  wit  [set  out  in  full]. 

^  May  be  made  in  common  pleas  or  probate  court,  by  sec.  6200. 


344  JOURNAL   ENTRIES.  [SEC.  6204- 

It  is  therefore  considered  by  the  court  \_set  out  any  direction 
the  court  may  make]. 

The  administration  bond  ;  sureties  in  ;  suit  on — 

671.  (Sec.  6204.)     Order  releasing  surety. 
[Title.] 

This  day  came  B,  S.,  and  his  application  to  be  released 
from  the  bond  of  F.  E.,  administrator  of  the  estate  of  F.  M., 
came  on  to  be  heard,  and  due  notice  thereof  having  been 
given  to  the  said  administrator,  and  good  reason  shown,  the 
application  is  granted  ;  and  it  is  ordered  that  said  adminis- 
trator give  a  new  bond  within days. 

672.  (Sec.  6204.)     Administrator  removed  for  failing  to  give  new 

bond. 

[Title.] 

It  appearing  to  the  court  that  S.  D.,  administrator  of  the 
above-named  estate,  has  failed  to  give  a  new  bond  within 
the  time  provided  by  the  former  order  of  the  court,  he  is 
hereby  removed  from  the  administratorship  of  said  estate. 

And  W.  K.  is  hereby  appointed  administrator  de  bonis  non 
of  said  estate,  and  it  is  ordered  that  he  give  bond  in  the  sum 
of dollars.  It  is  further  ordered  that  said  S.  D.  do  forth- 
with deliver  to  W.  K.,  as  said  administrator  de  bonis  von., 
upon  his  being  qualified  as  such,  all  moneys  and  property  in 
his  hands,  and  pay  over  to  him  the  balance  due  and  owing 
to  said  estate,  as  shown  by  his  accounts  filed  herein. 

673.  (Sec.  6205.)     Bond  insufficient,  new  bond  required. 
[Title.] 

On  petition  of  A.  C,  and  notice  to  the  administrator,  and 
the  court  finding  that  the  bond  of  said  administrator  is  in- 
sufficient, it  is  ordered  that  he  give  a  new  bond,  with  two 
sureties  to  the  approval  of  this  court,  within days. 

Sec.  6207.  The  order  removing  administrator  for  not  giving  bond 
may  be  similar  to  Entry  No.  672. 

Sec.  6208.  The  order  for  an  account  may  be  similar  to  Nos.  590, 
591,  and  592. 


-6224.]  EXECUTORS    AND    ADMINISTRATORS.  345 

674.  (Sec.  6208.)      Order  for  bond  of  indemnity. 
\  Title.] 

On  application  of  B.  S.,  one  of  the  sureties  on  the  bond  of 
E.  T.,  administrator  of  the  estate  of  F.  E.,  and  for  ^ood  cause 
shown,  the  court  hereby  directs  that  said  E.  T.  execute  a 
bond  of  indemnity  to  the  said  B.  S.,  as  such  surety,  within 
(hiys. 

Sec.  ()2()8.  The  entry  of  removal  may  be  .similar  to  Eutry  No.  672. 

675.  (Sec.  6212.)     Leace  to  bring  suit  on  bond  of  executor. 
{Title.'] 

This  day  tliis  cause  came  on  to  be  heard  on  tiic  motion  of 
R.  W.,  legatee  under  the  will  of  If.  W.,  decea.sed,  for  leave 
to])ringsuitou  the  bond,  and  against  the  bondsmen,  of  F.  M., 
executor.  And  it  appearing  to  the  court  that  [inake  statement 
necessary],  the  motion  is  granted,  and  leave  is  given  to  bring 
suit  accordingly  for  the  benefit  of  the  estate  of  F.  M.,  de- 
ceased. 

Sees.  6218  aud  6223.  Judgments  may  be  as  in  ordinary  civil  cases 
modified  to  .suit  the  facts. 

Proceedings  when  the  estate  of  a  deceased  person  is  insolv- 
ent— 

676.  (See.  6224.)     Conitniisioners  appointed. 
ITitle:] 

It  appearing  to  the  court,  from  the  representations  of  the 
executor,  that  the  estate  of  F.  M.  will  probably  be  insuffi- 
cient for  the  payment  of  his  debts,  the  court  now  appoint  C. 
M.  and  J.  W.  commissioners  *  to  receive  and  examine  all 
claims  of  creditors  against  said  estate,  and  to  return  to  the 
couit  a  list  of  all  claims  laid  before  them,  with  the  sum  they 
shall  allow  on  each.  And  it  is  ordered  that  they  give  notice 
of  the  times  and  places  of  their  meeting,  by  publications  in 
some    newspaper  of  general   circulation  in    the    county  of 


1  By  sec.  G225.     Or  the  order  may  be  for  posting  notices  in  the  township  where 

the  dcci':i;oil  lu.<t  dwelt. 


346  JOURNAL   ENTRIES.  [SEC.   6226- 

And  now  come  the  parties  above  named,  and  are  duly 
sworn  as  such  commissioners. 

677.  (Sec.  6226.)     Farther  time  allowed  to  commissioners. 
[Titlex] 

On  motion,  the  court  grant  months  further  time  to 

the  creditors  to  present  their  claims  to  the  commissioners 
heretofore  appointed  in  this  case. 

678.  (Sec.  6230.)     Order  allowing,  or  disallowing,  claim  on  appeal 

from  commissioners. 

[Title.'] 

On  hearing  ana  fall  consideration  on  appeal  from  the  com- 

issioners'  allowance  [or,  disallowance]  of  the  claim  of  A. 
D.  against  the  estate  of  F.  M.,  the  court  find  that  said  claim 
ought  not  to  be  [or,  ought  to  be]  allowed.  * 

It  is  therefore  adjudged  by  the  court  that  the  said  claim  be 
not  allowed  against  said  estate  [or,  be  allowed  against  said 
estate  by  L.  C,  the  executor  {or,  administrator  thereof)  in  the 

sum  of  doUars].     And  it  is  ordered  that  pay  the 

costs  of  this  proceeding,  and  execution  is  awarded  therefor. 

679.  (Sec.  6231.)     Order,  on  petition,  allowing  appeal. 
[Title.'] 

This  ca\ise  coming  on  this  day  to  be  heard  on  the  petition 
of  the  plaintiff  for  leave  to  prosecute  his  appeal  from  the  de- 
cision disallowing  his  claim,  heretofore  made  by  the  commis- 
sioners appointed  by  the  court  to  examine  the  claims  against 
the  estate  of  the  said  E.  F.,  and  it  appearing  to  the  court 
that  the  executor  [or,  administrator]  has  had  due  legal  no- 
tice of  said  petition,  and  that  the  plaintiff's  omission  to  claim 
his  appeal  was  not  by  his  own  neglect,  but  by  reason  of  ac- 
cident [or  other  cause],  and  it  further  appearing,  by  affidavit 

of  ,  that  justice  requires  a  further  examination  of  said 

claim,  it  is  now  ordered  and  adjudged  that  said  plaintifi:"s 
appeal  to  this  court  be  allowed,  on  payment  of  the  costs  of 
this  proceeding  [and  any  other  special  terms],  and  that  said  ap- 
peal be  retained  for  further  hearing. 


-6242.]  EXECUTORS    AND    ADMINISTRATORS.  347 

680.  (Sec.  6232.)     Order  allowing  claim  on  appeal  in  last  entry. 
[Title.-] 

As  in  No.  678  to  *,  and  continue:'] — and  adjudge  accord- 
ingly ;  said  claim  to  be  paid  out  of  any  assets  remaining  in 
[or,  coming  into]  the  hands  of  such  executor,  afterpayment  of 
all  money  due  on  prior  orders  of  distribution. 

And  it  is  ordered  that pay  the  costs  of  this  proceed- 
ing, and  execution  is  awarded  therefor. 

681.  (Sec.  6235.)     Order  for  distribution,  on  report  of  commis- 

sioners. 
[Title] 

It  appearing  from  the  report  of  the  commissioners  hereto- 
fore appointed  by  this  court  [or,  of  the  administrator  of  the 
estate,  or,  executor  of  said  F.  M.,  deceased]  that  the  claims 

allowed    against  the  above-named   estate   amount  to  8 , 

and  that  the  costs  and  expenses  of  administration  amount  to 

$ ,  it  is  ordered  that  the  executor  [or,  administrator  of 

the  estate]  of  said  decedent  pay  over  the  balance  of  the  assets 
in  his  hands,  to  wit,  the  sum  of  S ,  to  the  creditors  en- 
titled thereto,  according  to  law,  paying  to  each  one per 

cent  of  his  claim;  and  that  he  report  Ins  proceedings  to  this 
court. 

Ou  the  report  being  filed  it  should  be  confirmed  ;  the  entry  mav  be 
in  the  form  of  No.  661,  ante. 

682.  (Sec.  6236.)     Estate  declared  probably  insolvent,  executor 

authorized  to  act  in  place  of  commissioners. 
[Title.] 

It  appearing  from  the  representations  of  the  executor  that 
the  estate  of  F.  M.  will  probably  be  insolvent,  but  the  court 
not  deeming  it  necessary  to  appoint  commissioners,  the  exec- 
utor is  hereby  authorized,  in  place  such  commissioners  [con- 
clude as  from  *  in  No.  676]. 

Sec.  6239.  For  entry  extending  time,  etc.,  modify  Entry  Xo.  677. 
Sec.  6240.  For  entry  referring  claim  disallowed  by  executor,  modifj 
Entry  Xo.  610,  and  those  following. 


348  JOURNAL    ENTRIES.  [SEC.  6243- 

683.  (Sec.  6243  )     Judgment  on  the  aioard  of  the  referees. 
ITitle.-] 

On  hearing  by  the  court,  for  judgment  on  the  award  made 
by  the  referees  allowing  [or,  disallowing]  the  claim  of  A.  D. 
against  the  estate  of  F.  M.,  the  court  lind  that  said  claim 
ought  [or,  ought  not]  to  he  allowed,  and  the  award  of  the 
referees  is  therefore  confirmed  [or,  set  aside]. 

It  is  therefore  adjudged  by  the  court  that  the  claim  afore- 
said be  allowed  against  the  said  estate,  by  the  executor  thereof, 

in  the  sum  of dollars  [or,  be  not  allowed  against  said 

estate] ;  and  it  is  ordered  that pay  the  costs  of  this  pro- 
ceeding. 

684.  (Sec.  6243.)     Judgment  in  suit  brought  under  sec.  6241. 
[Title.'] 

Use  regular  judgment  finding,  yage  99,  or  if  by  default,  find- 
ing, page  100  to  *,  and^  coidinue:] — that  the  claim  of  the 
plaintiiF  ought  [or,  ought  not]  to  be  allowed. 

It  is  therefore  adjudged  by  the  court  that  the  claim  of  the 
said  A.  T>.  against  the  estate  of  the  said  1\  M.  be  allowed  by 
S.  C,  the  executor  [or,  administrator]  thereof,  in  the  sum  of 

dollars  [or,  he  not  allowed]  ;  and  it  is  ordered  that 

pay  the  costs  of  this  proceeding.^ 

Sec.  6244.  For  order  of  distribution,  modify  Entry  No.  681. 

685.  (Sec.  6244.)     Allowance  of  claim  confirmed  or  set  aside,  on 

exceptions  heard. 

[Title. -] 

This  cause  came  on  this  day  for  hearing  on  the  exceptions 

filed  by to  the  executor's  allowance  of  the  claim  of  W. 

D.,  for  the  sum  of  | ,  against  the  above-named  estate ; 

and  upon  full  hearing  the  court  find  that  said  claim  is  just, 
and  ought  to  be  allowed  [or,  find  that  said  claim  ought  not 
to  be  allowed],  and  therefore  overrule  [or,  sustain]  the  excep- 
tions theretOo 

1  As  to  costs,  see  sec.  6242. 


-G253.] 


EXECUTORS    AND    ADMINISTRATORS. 


349 


Sec.  6252.  For  orders  compelling  an  account,  modify  entries  to  com- 
pel the  return  of  an  inventory,  Nos.  590-3. 


CHAPTER  III. 


Of  mixous- 

68ii.  (Sec. 

687.  (.Sec. 

688.  (Sec. 

689.  (Sec. 

690.  (Sec. 

691.  (Sec. 

692.  (Sec. 
69H.  (Sec. 
694.  New 
695  (.Sec. 

69G.  (Sec. 

697.  (.Sec. 

698.  (Sec. 

699.  (.Sec. 

700.  (Sec. 

701.  (Sec. 

702.  (Sec. 


625.^). 

6257. 
6257. 
6259 
6261. 
626 1 . 
6261. 
6261. 
bond 
6268. 

6269. 
6269, 
6269 
6273 
6273 
6274. 
6277. 


703.  (Sec.  6279.) 


GUARDIANS  AND  TRUSTEES. 

)  Letters  granted  for  minor  under  fourteen  [^or,  female 
under  twelve]  years  of  age. 

Guardian  appointed  on  selection  of  minor. 

Guardian  appointed  on  minor  failing  to  select. 

Mortgage  received  from  guardian  in  lieu  of  bond. 

Exceptions  to  guardian's  bond  dismissed. 

Additional  sureties  required  on  bond. 

Security  in  a  larger  amount  ordered. 

Order  for  new  bond,  made  by  court  on  its  own  motion, 
of  guardian  given. 

Bond  subsequently  required  of  guardian  relieved  by 
will  from  giving  one. 

Guardian  removed  for  failing  to  file  inventory. 

Order  for  special  account. 

Order  authorizing  guardian  to  loan  money,  etc. 

Surety  released,  new  bond  ordered. 

Guardian  removed  for  failing  to  give  new  bond. 

Resignation  of  guardian  accepted. 

Guardian  removed,  on  removal  of  ward  to  another 
state. 

Foreign  guardian  authorized  to  receive  money  from  ex- 
ecutor or  administrator. 


S.\LE  OF  RE.\L  ESTA 

704.  (.Sec.  6282.) 

705.  (Sec.  6283.) 

706.  (Sec.  6283.) 

707.  (Sec.  6283.) 


708.  (Sec.  6283.) 

709.  (Sec.  6285.) 

710.  (.Sec.  6286.) 

711.  (Sec.  6286.) 

23 


rE  BY  GU.\KI)I.\X — 

Notice  of  petition  ordered. 

Order  for  appraisement  when  there  is  no  dower  interest. 

Order  for  appraisement  in  case  widow  has  waived  dower 
by  metes  and  bounds. 

Order  for  appraisement  in  case  there  is  a  dower  inter- 
est which  the  apprai.-<ers  do  not  set  off,  but  subject 
to  which  the  appraisement  is  made. 

Order  for  assignment  of  dower  and  appraisement  of 
premises. 

Bond  of  guardian  ordered  and  approved. 

Bond  of  guardian  approved  and  order  for  sale. 

Assignment  of  dower  by  metes  and  bounds  confirmed 
and  decree  for  snii- 


350  JOURNAL   ENTRIES.  [SEC.  6254- 

712.  (Sec.  6286.)     Assignment  of  dower  as  of  rents,  etc..  confirmed  and, 

order  for  sale. 

713.  (Sec.  6286.)     Order  for  private  sale. 

714.  (Sec.  6862.)     Same — on  offer  reported. 

715.  (Sec.  6287.)     Sale  confirmed  and  deed  ordered. 

716.  (Sec.  6287.)     Same — when  widow  has  waived  dower  by  metes  and 

bounds,  etc. 

Leasing  op  real  estate — 

717.  (Sec.  6298.)     Freeholders  appointed  to  report  on  guardian's  applica» 

tion  to  lease  real  estate  of  ward. 

718.  (Sec.  6299.)     Order  for  guardian  to  lease. 

Of  lunatics,  idots,  and  imbeciles — 

719.  (Sec.  6302.)     Letters  of  guardianship  granted. 

720.  (Sec.  6307.)     Sale  of  dower  right  Vjy  guardian  approved. 

721.  (Sec.  6315.)     Foreign  guardian  authorized 'to  act  in  county. 

722.  (Sec.  6316.)     Entry  of  termination  of  guardianship. 

Of  drunkards — 

723.  (Sec.  6319.)     Order  that  guardianship  cease. 

Trustees  of  non-residents — 

724.  (Sec.  6320.)     Order  appointing,  of  non-resident  minor,  etc. 

725.  (Sec.  6325.)     Order  that  trustee  pay  over  money  to  foreign  guardian. 

Trustees  generally  and  their  accounting — 

Of  minors — 

686.  (Sec.  6255.)  Letters  of  guardianship  granted  for  minors 
under  fourteen  [or,  ij  female,  twelve]  years 
of  age} 

[Title.'] 

Upon  application,   the   court  grants  to   C.  M.  letters  of 
guardianship  for  the  estate  and  person  [or  either^  of  E.  M., 

a  minor,  aged years,  and  M.  A.  M.,  a  minor,  aged 

years,  children  of  G.   M.,   deceased  [the   said   C.   M.  being 
named  for.  such  guardian  in  the  will  of  of  the  said  G.  M]." 

*  Whereupon  he  accepted  said  appointment  [and  filed  a 

^If  the  appointment  is  for  the  person  only,  it  is  well  enough  for  the  journal 
entry  to  show  the  reason  for  the  appointment. 
2  See  sec.  6267. 


-6260.]  GUARDIANS    AND     TRUSTEES.  351 

statement,  as  required  by  law,  of  the  whole  estate  of  said 
minors,  and  the  probable  value  thereof,  and  also  of  the  prob- 
able annual  rents  of  said  minors'  real  estate],^  was  duly  sworn, 
and  presented  his  bond  -  as  such  such  guardian  in  the  sum 

of dollars,  with  F.  S.  and  M.  S.  as  sureties,  which  bond 

is  a[)provod  by  the  court.  [^Bnt  if  by  the  terms  of  a  will  no 
bond  is  required,  say :  Bond  being  dispensed  with  by  said  will, 
none  is  required.]  ^ 

687.  (Sec.  6257.)     Guardian  appointed  on  selection  of  minor. 
[Title.'] 

Upon  application,  and  C.  M,  having  been  selected  as  guard- 
ian  by  I).  M.,  a  minor,  of  the  age   of years,  and   the 

court  being  satisfied  that  he  is  a  suitable  person,  letters  of 
guardianship  are  hereby  granted  to  the  said  C.  M.,  for  the 
estate  and  person  [or  either']  of  the  said  D.  M.,  chikl  of  B. 
M.,  deceased. 

[Conclude  asfrotu  *  in  last.] 

688.  (Sec.  6257.)     Guai^dian  appointed  for  minor  of  fourteen  [or, 

if  female,  ticeloe]  years,  who  fails  to  select. 

[Title.] 

D.  M.,  a  minor,  of  the  age  of years,  having  failed  to 

select  a  guardian,  the  court,  on  application,  grants  letters  of 
guardianship  to  C.  M.,  for  the  estate  and  person  [or  either]  of 
the  said  D.  M.,  child  of  B.  M.,  deceased. 

[Conclude  as  from  *  in  No.  686. 

689.  (Sec.  6259.)     Mortgage  received  from  guardian  in  lieu  of 

bond. 

[Title.] 

Instead  of  clause  in  the  entries  of  appointment  of  bond  pre- 
sented, say :  presented,  in  lieu  of  a  bond,  a  mortgage  dulv 
executed  to  said  minor  upon  good  and  unincumbered  real 

1  By  sec.  6259.  If  the  guardian  is  appointed  for  the  person  only,  omit  this 
clause  in  brackets. 

2  See  sees.  6259  and  6263.  When  mortgage  is  given  in  lieu  of  bond,  see  En- 
try No.  689,  for  clause  to  be  substituted  for  this. 

3  See  sec.  6268. 


352  JOURNAL    ENTRIES.  [SEC.  6261- 

estate  ;  and  the  court  being  satisfied,  by  affidavits,  with  the 
sufficiency  of  said  security,  order  said  mortgage  to  be  recorded 
and  filed  according  to  law. 

690.  (Sec.  6261.)     Exceptions  to  guardian's  bond  dismissed. 
[Title.] 

Upon  full  hearing  of  the  exceptions  filed  herein  by  C.  B. 
to  the  sufficiency  [or,  sureties]  of  the  bond  of  C.  M., 
guardian  of  D.  M.,  the  court  find  *  that  the  said  exceptions 
are  not  well  taken,  and  they  are  therefore  dismissed. 

691.  (Sec.  6261.)     Additional   sureties   required,  on  hearing  of 

exceptions  to  bond  of  guardian. 

[Title.] 

As  in  last  to  ^,  and  conclude:] — said  exceptions  to  be  well 
taken,  and  order  that  said  guardian  find  additional  sureties 
within days. 

692.  (Sec.  6261.)     Security  in  a  larger  amount  ordered. 
[Title.] 

As  in  No.  690  to  *,  and  conclude:] — said  exceptions  to  be  well 

taken,  and  order  that  a  new  bond,  in  the  sum  of  ^ ,  be 

given  by  said  guardian  within days. 

693.  (Sec.  6261.)     Order  for  new  bond,  made  by  court  on  its  oivn 

motion. 

[Title.] 

It  appearing  to  the  court  that  the  bond  of  C.  M.,  guard- 
ian of  D.  M.,  a  minor,  is  insufficient,  by  reason  of  [state  cause], 
it  is  now  ordered  that  said  guardian  give  a  new  bond,  in  the 
sum  of  $ ,  within days. 

694.  Neio  bond  of  guardian  given. 
[Title.] 

This  day  came  the  said  C.  M.,  guardian  of  D.  M.,  a  minor, 
and  presented  to  the  court  a  new  bond  as  such  guardian,  in 

the  sum  of dollars,  with   C.  H.  and  T.   G.   as  sureties, 

which  bond  is  approved  by  the  court  and  ordered  filed 


-6269.]  GUARDIANS     AND    TRUSTEES.  353 

695.  (Sec.  6268.)     Bond  subsequently  required  of  guardian  who 

is  relieved  by  will  from  giving  bond. 

[Title.'] 

On  motion  of ,  and  for  good  cause  shown,  it  is   now 

ordered  that  C.  M.,  as  guardian  of  D.  M.,  a  minor,  give  bond, 
in  the  sum  of  $ ,  within days. 

Sec.  6269.  The  notices  to  guardians  provided  for  in  this  section  may 
be  by  citation,  issued  by  the  probate  judge,  either  with  or  without  a 
journal  entry  therefor. 

696.  (Sec.  6269.)     Guardian    removal  for  failing   to  Jile   in- 

ventory. 

[Title.'] 

C.  M.,  guardian  of  D.  M..  a  minor,  having  failed  to  file  an 
inventory,  as  required  by  law,  due  notice  having  been  given 
him,  he  is  hereby  removed  from  such  guardianship. 

[If  another  guardian  is  immediately  appointed,  continue  as  in 
one  of  the  forms  above  making  the  appointment.] 

Sec.  6269.  Aceonnis  of  guardiam.  It  is  the  guardian's  duty  to  ren- 
der on  oath  to  the  proper  court  an  account  of  his  receipts  and  expendi- 
tures, verified  by  vouchers  or  proof,  once  in  every  two  vears,  or  oftener, 
if  ordered  by  the  court. 

The  journal  entries  to  be  made  may  be  as  follows  : 

Account  current  filed  and  suspended.  Use  form  of  Entry  No.  649, 
page  337. 

Final  account  filed  and  suspended.  Use  form  of  Entry  No.  650, 
page  337. 

Notice  of  filing  accounts  ordered.     Modify  Entrv  No.  775. 

Publication  of  notice  approved.     Modify  Entry  No.  776. 

Suspended  account  allowed  and  confirmed.  Use  form  of  Entries 
Nos.  651-3,  page  337. 

Accounts  confirmed  on  exceptions  heard.  Use  form  of  Entry  No. 
654,  page  339. 

Account  disallowed.     Use  form  of  Entry  No.  655,  page  339. 

Exceptions  withdrawn.     Use  form  of  Entry  No.  656,  page  339. 

697.  (Sec.  6269.)     Order  for  special  account. 
[Title:]  ^ 

On  motion  of ,  and  for  good  cause  shown,  viz,  [state 


354  JOURNAL    ENTRIES.  [SEC.  6269- 

cause],  it  is  ordered  that  C.  M.,  guardian  of  D.  M.,  a  minor, 

render  to  this  court,  within  days,  an  account  of  his 

guardianship  since  his  last  report. 

Sec.  6269.  Loaning  and  investing  wardJs  money.  Although  the  guard- 
ian is  uot  required  by  statute  to  obtain  an  order  of  court  authorizing 
the  investment,  it  is  always  better  that  such  order  should  be  made.  It 
may  be  made  in  the  following  form  : 

698.  (Sec.  6269.)     Order  authorizing  guardian  to  loan   money, 

etc. 
[Title.'] 

On  application  of  the  guardian  herein,  and  the  court  be- 
ing satisfied  that  it  would  be  for  the  best  interest  of  the  said 
C.  D.,  the  said  guardian  is  hereby  authorized  and  directed  to 

loan  the  sum  of  % ,  in  his  hands  as  such  guardian,  to  S. 

H.,  at per  cent  interest,  for years,  on  his  giving  his 

note  therefor,  secured  by  first  mortgage  on  the  following  de- 
scribed real  estate,  viz.  [describe']. 

Sec.  6272.  An  order  of  removal  for  any  of  the  causes  named  in  this 
section  may  be  made  in  the  form  of  Entry  No.  696,  above. 

699.  (Sec.  6273.)     Surety  released,  new  bond  ordered. 
[Title.] 

Modify  Entry  No.  671. 

700.  (Sec.  6273.)     Guardian  removed  for  failing  to  give  new 

bond. 
[Title.] 
Modify  Entry  No.  696. 

701.  (Sec.  6274.)     Resignation  of  guardian  accepted. 
[Title.] 

This  day  came  the  said  C.  M.,  guardian  of  D.  M.,  a  minor, 
and  tendered  his  resignation  to  the  court;  and  the  court  be- 
ing fully  advised  in  the  premises,  hereby  accepts  the  same. 

[Entry  may  conclude  with  appointment  of  successor  as  in  one  of 
above  entries,  Nos.  686-8.] 


-<»-<Sl.j  GUARDIANS     AND    TRUSTEES.  355 

Sec.  6275.  Orders  enforcing  return  of  inventories,  accounts,  etc., 
may  be  made  in  form  as  given  in  entries  relating  to  executors  and  atl- 
ministrators,  Nos.  590-2. 

702.  (Sec.  6277.)  Guardian  removed,  on  removal  of  v)ard  to 
anolher  stale. 

[Title] 

This  (lay  came  T.  P.,  and  luiving  heretofore  filed  in  this 
court  an  exemplified  record  from  the  court  of  Indianapolis, 
Indiana,  as  required  by  law,  showing  his  appointment  by 
said  court  as  guardian  of  J).  M.,  a  minor,  now  a  resident 
of  said  city  of  Indianapolis,  together  with  a  copy  of  his  bond 
and  letters  of  guardianship,  all  duly  authenticated,  and 
made  application  *  for  the  removal  of  C.  M.,  the  guardian 
appointed  by  this  court  for  the  said  D.  M.,  while  a  resident 
of  this  county,  and  for  the  settlement  of  his  account.  And 
thereupon,  duo  legal  notice  having  been  served  u[)on  the 
said  C.  M.,  and  the  court  being  satisfied  that  such  removal 
would  be  to  the  interest  of  said  ward,  it  is  therefore  ordered 
that  the  said  C.  M.  be  removed  from  liis  said  guardianship. 

It  is  further  ordered  that  the  said  C.  M.  pay  over  and  de- 
liver to  the  said  T.  P.  all  moneys  and  other  property  in  his 
hands  belonging  to  the  estate  of  his  said  ward,  and  thereupon 
be  discharged  from  all  further  lial)ility  as  such  guardian.^ 

708,  (Sec.  6279.)  Foreign  guardian  authorized  to  receive  money 
from  executor  or  administrator. 

[Title.] 

As  in  last  entry  to  *,  and  continue ;] — for  permission  to  de- 
mand and  receive  certain  moneys  [or  other  properly]  in  the 
hands  of  E.  T.,  executor  of  the  estate  of  G.  M.,  belonging 
to  the  said  ward,  and  the  court  being  satisfied  that  he  is  en- 
titled thereto,  it  is  thereupon  ordered  that  said  T.  P.  be  per- 
mitted and  fully  authorized  as  such  guardian  to  demand  and 
receive  said  money  [or  other  property].,  and  remove  the  same 
from  the  jurisdiction  of  this  court. 

A  similar  order  may  be  made  for  the  other  cases  named  in  sec. 
6279. 

'  See  sec.  6278. 


356  journal  entries.        [sec.  6282- 

Sale  op  real  estate  by  guardian — 

704.  (Sec.  6282.)     Notice  to  defendant,  of  petition  to  sell  real  es- 

tate, ordered. 

[Title.] 

Upon  reading  the  petition  herein,  it  is  ordered  by  the  court 
that  the  phiintiif  cause  notice  to  be  served  on  the  defendant 
[or,  defendants]  by  the  sheriff  of  this  county  [or  otherwise  as 
the  court  may  deem  best],  of  the  filing  of  said  petition  and  the 
object  and  demand  thereof,  and  that  the  same  will  be  for 
hearing  on  the day  of ,  18 — ,  at o'clock  a.  m. 

For  entry  appointing  guardian  ad  litem,  see  Entries  Nos.  10  and  11, 
page  18.  While  there  is  no  provision  in  this  chapter  requiring  it, 
many  attorneys  prefer  that  a  guardian  ad  litem  should  be  appointed. 

705.  (Sec.  6283.)     Order  for  appraisement  of  real  estate  when 

there  is  no  dower  interest. 

[Title.'] 

This  cause  being  heard  this  day  upon  the  petition  [name 
any  other  pleadings]  and  the  testimony  oliered,  and  the  court 
being  satisfied  that  the  notice,  as  heretofore  ordered,  has  been 
served  upon  the  defendant  [or,  defendants],  the  court  find 
that,  as  set  out  in  said  petition,  the  real  estate  therein  de- 
scribed [or  specifically  name  any  part  of  it]  ought  to  be  sold  to 
pay  the  debts  of  the  said  defendant,  C.  D.  [or  for  other  cause 
named  in  sec.  6280].  * 

[If  the  property  is  to  he  subdimded,  here  order  as  follows  : — 
And  it  being  further  shown  to  the  court  that  it  will  be  to 
the  advantage  of  the  ward  to  have  said  land  hxid  out  into 
lots,  it  is  therefore  ordered  that  the  petitioner  cause  the  same 
to  be  done,  subdividing  the  same  into  lots  of  such  size  and 
laying  out  such  streets  as  he  shall  deem  best  for  said  estate, 
and  return  a  plat  thereof  to  this  court.  And  he  is  hereby 
authorized  to  emplo)'  some  competent  surveyor  to  hiy  out 
and  plat  said  land.]  [f] 

And  it  is  therefore  ordered  and  adjudged  that  [after  such 
subdivision]  said  real  estate  [or,  lots  so  laid  out]  be  appraised 
by  the  oaths  of  T.  K.,  H.  F.,  and  J.  H.,  freeholders  of  the 


-6283.]  GUARDIANS     AND    TRUSTEES.  357 

county,  not  of  kin  to  the  petitioner,  whom  the  court  hereby 
appoint  for  that  purpose,  and  that  they  return  their  appraise- 
ment to  this  court  without  unnecessary  delay. 

706.  (Sec.  6283.)     Or<ler  for  appraisement   in    case  midoiv  has 

waived  rioioer  by  mcfes  and  bounds? 

[Title.] 

As  ill  last  to  *,  or,  if  property  is  to  be  subdivided,  to  [f],  and 
continue:'] — 

And  L.  D.,  widow  of  M.  J).,  having  by  her  answer  waived 
the  assignment  of  her  dower  by  nietes  and  bounds,'  it  is  or- 
dered and  adjudged  that  [after  such  subdivision],  said  real 
estate  [or,  lots  so  laid  out]  be  appraised,  free  from  the  dower 
interest  of  the  said  L.  T).,  by  the  oaths  of  T.  K.,  II.  F.,  and 
J.  H.,  freeholders  of  tliis  county,  not  of  kin  to  the  petitioner, 
whom  the  court  iiereby  a})point  for  that  purpose,  and  that 
they  return  their  appraisement  to  this  court. 

707.  (Sec.  6283.)      Order  for  appraisement    in    case  there   is  a 

dower  interest,  irhich  the  appraisement  does 
not  set  off,  but  saltject  to  which  the  appraise- 
merd  is  made. 
[Tdle.] 

As  in  No.  705  to  *,  or,  if  the  property  is  to  he  subdivided,  to 
[f],  and  continue:]  — 

And  it  is  ordered  and  adjudgtMl  tliat  [after  such  subdivis- 
ion] said  real  estate  [or,  lots  so  hiid  out]  Ijo  a}»[»raiscd,  subject 
to  the  dower  interest  of  the  said  L.  D.,  by  the  oaths  of  T. 
K.,  II.  F.,  and  J.  II.,  freeholders  of  the  county,  not  of  kin 
to  the  petitioner,  whom  tlie  court  hereby  appoint  for  that 
purpose,  and  that  they  return  their  appraisement  to  this  court 
without  unnecessary  delay. 

In  case  there  is  a  widow  entitled  to  dower  in  the  property,  who  has 
not  waived  its  assignment  under  see.  5719,  there  is  no  provision  an- 
thorizing  the  appraisers  appointed  under  this  chapter  to  assign  it,  as 
there  is  under  the  law  relating  to  executors  and  administrators,  by  sec. 
6155.  But  it  may  be  that  sec.  525,  which  gives  to  the  probate  court 
concurrent  jurisdiction  in  the  assignment  of  dower  in  case  of  sales  by 

'Bv  sec.  5710. 


358  JOURNAL    ENTRIES.  [SEC.  6283- 

executors  and  guardians,  is  sufficient  to  authorize  the  court  to  have 
such  dower  assigned  by  the  appraisers  without  the  widow's  petition 
therefor.  But  if  not,  there  appears  to  be  no  reason  why  the  widow 
may  not  by  answer  and  cross -petition  ask  for  the  assignment  of  dower, 
and  then  the  action  be  carried  on  for  the  double  purpose  of  selling  the 
ward's  real  estate  and  assigning  the  widow's  dower,  decrees  being  mod- 
ified accordingly.     If  this  view  is  correct,  make  decree  as  follows  : 

708,  (Sec.  6283.)  Order,  for  assignment  of  dower  and  appraise- 
ment of  premises. 

[  ritle.] 

As  in  No.  705  to  *,  or,  if  the  property  is  to  be  subdivided,  to 
[t|,  and,  continue:'] — 

And  it  appearing  to  the  court  that  L.  D.,  the  widow  of  M. 
D  ,  deceased,  is  entitled  to  dower  in  said  premises,  as  set  up 
in  her  answer  and  cross-petition,  it  is  ordered  that  T.  K., 
H.  F.,  and  J.  H.,  judicious  and  disinterested  freeholders  of 
the  vicinity,  residents  of  said  county,  who  are  not  of  kin  to 
the  petitioner,  after  being  duly  sworn,  set  oif  and  assign  the 
same,  and  also,  upon  the  same  oath,  appraise  said  real  es- 
tate, subject  to  such  dower  so  assigned,  and  that  they  return 
their  proceedings  to  this  court. 

700.  (Sec.  6285.)     Bond  of  guardian  ordered  and  approved. 

[Title.'] 

The  appraisers  heretofore  appointed  by  this  court  in  this 
case  having  filed  their  appraisement  of  the  real  estate,   as 

heretofore  ordered,  aggregating  the  sum  of  $ ,  it  is  or- 

d(!red  that  C.  B.,  tlie  petitioner  herein,  guardian  of  the  said 
]j.  P.,  execute  a  bond,  as  required  by  sec.  6285  of  the  Re- 
vised Statutes,  in  the  sum  of  % . 

And  now  the  said  C.  B.  presents  his  bond  as  aforesaid,  with 
«l.  D.  and  L.  E.  as  sureties,  to  the  approval  of  the  court. 

The  decree  for  sale  may  be  entered  at  any  time  after  the  last  entry 
is  made.  If  the  decree  is  to  be  entered  at  once  the  following  form  of 
bond  approved  and  order  for  sale  may  be  made,  instead  of  making  sep- 
arate entry  as  last. 


-6286.]  GUARDIANS     AND    TRUSTEES.  359 

710.  (Sec.  6286.)     Bond  of  (juardian  approved,  raid  decree  for 

sale. 

[Title.'] 

The  appraisers  heretofore  appointed  hy  this  court  in  this 
case  having  filed  their  ap})raisemcnt  of  the  real    estate,  as 

heretofore  directed  [free  of  dower],  in  the  sum  of  $ ,  and 

the  said  C  W.  having  filed  his  bond,  conditioned  according 

to  law,  in  the  sum  of  $ ,  with  J.  D.  and  L.  E.  as  sureties, 

which  bond  the  court  approves,  *  it  is  ordered  that  said  C. 
B.,  guardian  of  C.  D.,  proceed  to  sell  the  real  estate  aforesaid 
[subject  to,  or,  free  from  the  dower  interest  of  the  said  L.  D.] 
for  not  less  than  two-thirds  of  its  appraised  value,  and  on 
the  following  terms,  to  wit,  one-third  cash,  one-third  in  one 
year,  and  one-third  in  two  years  from  day  of  sale;  deferred 

payments  to  bear  interest  at  the  rate  of per  cent  per 

aujium,  and  to  be  secured  by  mortgage  on  tlie  jiremises  [or 
v'inic  other  terms];  and  that  said  sale  be  made  by  ])ublic  auc- 
tion, on  the  premises,  after  giving  notice  by  j)ublication  in 
the  Cincinnati  Daily  Gazette  of  the  time  and  place  thereof, 

for consecutive  weeks  [or  make  other  order  as  to  adrertise- 

ment  and  place  of  sale].  And  it  is  ordered  that  said  guardian 
make  due  return  of  his  proceedings  and  sale  to  this  court 
without  unnecessary  delay. 

711.  (Sec.  6286.)     Assignment  of   dower  by  metes  and  bounds 

eoiifirnied,  and  decree  for  sale. 

[Tdle.] 

This  cause  came  on  this  day  to  be  heard  on  the  return  of 
.the  appraisers  heretofore  appointed  by  the  court  in  this  case 
of  their  proceedings  in  the  assignment  of  dower,  and  ap- 
praisement of  premises  subject  to  such  dower,  under  the 
former  order  of  this  court,  and  the  court  being  fully  advised, 
find  said  proceedings  in  all  respects  in  conformity  to  law,  and 
do  hereby  approve  and  confirm  the  same.  And  it  appearing 
that  the  dower  of  the  said  L.  D.  has  been  assie^ned  bv  metes 
and  bounds,  it  is  therefore  adjudged  that  she  have  and  hold 
in  severalty  the  lands  so  assigned  to  her,  to  wit  [describe],  as 
and  for  her  dower  in  said  premises.  And  the  said  C.  B.  hav- 
ing filed  his  bond,  conditioned  according  to  law,  in  the  sum 


360  JOURNAL    ENTRIES.  [SEC.  6286- 

of  $ ,  with  J.  D.  and  L.  E.  as  sureties,  which  bond  the 

court  approve  *  [conclude  as  from  *  in  Entry  No.  710]. 

712.  (Sec.  6286.)  Assignment  of  dower  as  of  rents  and  profits 
confirmed,  and  decree  for  sale. 

[Title.-] 

This  cause  came  on  this  day  to  be  heard  on  the  return  of 
the  appraisers  heretofore  appointed  by  the  court  in  this  case 
of  their  proceedings  in  the  assignment  of  dower,  and  ap- 
praisement of  premises  subject  to  such  dower,  under  the 
former  order  of  the  court,  and  the  court  being  fully  advised, 
find  said  proceedings  in  all  respects  in  conformity  with  law, 
and  do  hereby  approve  and  confirm  the  same.  And  it  ap- 
pearing that  said  dower  has  been  assigned,  as  of  the  rents 
and  profits,  in  the  annual  sum  of  $ ,  it  is  therefore  ad- 
judged that  the  said  L.  D.  stand  so  endowed  in  said  annual  sum 

of  I ^  and  the  said  premises  are  hereby  charged  with  the 

payment  of  the  same  on  the day  of of  each  and 

every  year  of  the  natural  life  of  the  said  L.  D.  And  in  de- 
fault of  payment  thereof  an  execution  is  hereby  allowed 
therefor,  against  said  lands  as  after  judgments  at  law.  And 
the  said  C.  B.  having  filed  his  bond,  conditioned  according 

to  law,  in  the  sum  of  $ ,  with  J.  D.  and  L.  E,  as  sureties, 

which  bond  is  approved  by  the  court  *  [conclude  as  from  * 
in  Entry  No.  710]. 

/13.  (Sec.  6286.)      Order  for  private  sale. 

[Title.'] 

As  in  No.  710,  or  No.  711,  or  No.  712,  according  to  cireum- 
dances,  to  *,  and  continue:] — and  it  appearing  to  the  court 
that  it  would  be  more  to  the  interest  of  said  estate  to  sell 
^he  said  real  estate  at  private  sale,  [j]  it  is  therefore  ordered 
and  decreed  by  the  court,  that  the  said  guardian  proceed 
to  sell  the  real  estate  described  in  the  petition  [subject  to, 

or,  free  from  the  dower  interest  of  the  said ],  according 

to  law,  at  private  sale,  for  not  less  than  its  appraised  value, 
and  upon  the  following  terms,  to  wit  [name  terms],  and  that 
he  report  his  proceedings  hereunder  immediately  after  such 
sale  is  made. 


-6298.]  GUARDIANS     AND    TRUSTEES.  361 

714.  (Sec.  6286.)     Order  for  'private  sale,  on  report  of  offer  made, 
[litle.'] 
Modify  Entry  No.  643. 

715    (Sec.  6287.)     Sale  confirmed,  and  deed  ordered. 

[  Title.] 

This  cause  now  being  heard  on  the  return  of  C.  B., 
guardian  of  L.  P.,  a  minor,  of  his  proceedings  and  sale  un- 
der the  order  of  this  court,  and  on  the  motion  to  confirm  the 
same,  tlie  court,  after  carefully  examining  said  return,  and 
being  satisfied  that  such  sale  was  fairly  and  legally  made, 
does  hereby  ajiprove  and  confirm  the  same,  and  order  that, 
upon  the  deferred  payments  of  liurchase-money  being  prop- 
erly secui-ed,  the  said  C.  B.,  guardian,  make  to  the  purchaser, 
L.  M.,  a  good  and  sufficient  deed  for  the  premises  so  sold.  * 
And  it  is  ordered  that,  after  paying  the  costs  of  this  proceed- 
ing, taxed  at  $ .  the  l)alanco  of  the  proceeds  of  sale  be 

applied  by  the  guardian  according  to  law. 

716.  (Sec.  6287.)  Same,  when  widow  has  waived  dower  by  metes 
and  bounds. 

[Title.] 

As  in  laat  to  *.  and  continue  :] — 

And  the  said  L.  D.  having  by  her  answer  in  this  case 
elected  to  receive  in  lieu  of  her  dower  its  value  in  money, 
the  court  find  the  just  and  reasonable  value  thereof  to  be 
dollars. 

It  is  therefore  ordered  that,  after  payment  of    the  costs 

herein,  taxed  at  S ,  the  said  guardian  pay  to  said  L.  D. 

the  said  sum  of  8 ,  in  full  of  her  dower  interest.  Leav- 
ing in  the  hands  of  the  guardian   a  balance  of  S ,  to  be 

applied  by  him  as  by  law  required. 

Leasing  of  real  estate — 

Sec.  6298.  The  order  for  notice  of  petition  filed  by  guardian  will  be 
the  same  as  Entry  No.  704. 


362  •  JOURNAL    ENTRIES.  [SEC.  6298- 

717.  (Sec.  6298.)     Freeholders  appointed  to  report  on  guardian's 

application  to  lease  real  estate. 

[Title.] 

On  hearing  of  the  petition  of  C.  B.,  guardian  of  L.  P.,  a 
minor,  for  permission  to  lease  certain  real  estate,  as  described 
in  said  petition,  belonging  to  his  ward,  the  court  hereby  ap- 
points E.  S.,  E.  D.,  and  J.  G.,  three  disinterested  freeholders 
of  this  county,  not  of  kin  to  the  petitioner,  to  view  the  said 
premises,  and  report,  under  oath,  their  opinion  of  the  prob- 
able cost  of  the  improvements  proposed  by  said  guardian, 
and  whether  or  not  the  lease  proposed  by  him  would  be  for 
the  best  interest  of  his  ward,  and  upon  what  terms  the  lease 
should  be  made ;  said  report  to  be  returned  on  or  before  the 

day  of ,  18 — ,  which  day  the  court   appoints  for 

the  final  hearing  of  the  case. 

718.  (Sec.  6299.)     Order  for  f/uardian  to  lease. 
[Title.] 

On  hearing  of  the  petition  herein,  and  of  the  report  of 
the  freeholders  heretofore  appointed  to  view  the  premises, 
and  the  court  being  satisfied  that  the  notice  has  been  duly 
served  upon  the  ward  of  the  petitioner,  and  being  satisfied 
that  the  lease  proposed  would  be  to  the  advantage  of  the  said 
ward,  and  is  necessary  to  secure  the  improvement  of  the  real 
estate  and  to  increase  its  rents,  which  increase  is?  needed  for 
the  support  and  education  of  said  ward  [or  other  purpose 
named  in  section].,  the  court  therefore  authorizes  and  empow- 
ers the  said  guardian  to  make  said  lease,  to  wit,  a  lease  for 

years  to  J.  R.,  at  an  annual  rent  of  % [state  terms 

fully],  of  the  following   described  real    estate,  to  wit  [de- 
scribe]. 

And  the  court  further  directs  that  the  improvements  to  be 
made  shall  be  made  [state  by  whom  and  how,  as  pr^ovided  in  sec. 
6300]. 

Of  lunatics,  idiots,  and  imbeciles — 

719.  (Sec.  6302.)     Letters  of  guardianship  granted. 
[Title.] 

Upon  application,  and  the  court  being  satisfied  that  J.  L., 
a  resident  of  this  county,  is  an  idiot  [or,  an  imbecile  ;  or,  a 


-6315.]  GUARDIANS    AND    TRUSTEES.  363 

lunatic],  and  incapable  of  managing  his  affairs,  C.  M.  is 
hereby  appointed  guardian  of  the  person  and  estate  \_or  either] 
of  said  J.  L.,  and  letters  of  guardianship  are  granted  ac- 
cordingly. 

[Conclude  as  from  *  in  Entry  No.  686.] 

Other  orders  relating  to  these  guardians  may  be  made  as  in  case  of 
guardians  for  minors,  by  virtue  of  sec.  6304. 

Sec.  6306.  Proceedings  for  sale  are  the  same  as  in  case  of  guardian 
for  minor.  If  the  idiot,  imbecile,  or  lunatic  has  a  wife  who  files  her 
answer  consenting  to  a  sale  free  of  dower,  and  the  court  fix  the  value 
of  her  dower  interest,  the  order  for  appraisement  may  be  in  the  form 
of  Entry  No.  706,  and  the  decree  of  sale  in  the  form  of  Entry  No. 
710,  and  the  decree  of  confirmation  in  the  form  of  Entry  No.  716. 
But  in  each  of  these  cases  use  the  words  "right  and  expectancy  of 
dower,"  instead  of  "  dower  interest." 

720.  (Sec.  6307.)     Sale  of  dower  ritjht  by  guardian,  approved. 

[Title:] 

And  now  conies  C.  B.,  guardian  of  L.  M.,  and  represents 
to  the  court  that  his  ward  has  a  right  of  dower  in  the  fol- 
lowing lands,  to  wit  [describe],  and  has  an  offer  of  S for 

the  said  dower  right.  And  the  court  being  of  opinion  that 
the  price  is  a  fair  one,  hereby  approves  the  sale,  for  said 
sum,  and  authorizes  the  said  guardian  to  make  the  same. 


&" 


Sec.  6308.  For  entries  in  proceedings  to  lease,  modify  Nos.  717  and 
718. 

Sec.  6309.  For  entries  in  proceedings  to  make  long  lease,  etc. ,  mod- 
ify Entries  Xo.  704,  and  those  following  relating  to  sales. 

Sec.  6312.  For  entry  directing  lease,  modify  Entry  No.  718. 

Sec.  6313.  For  decree  ordering  guardian  to  complete  real  contract 
of  ward  or  previous  guardian,  modify  Entry  No.  471,  page  258,  the 
order  for  additional  bond  being  added  to  decree. 

Judgment  to  compel  completion  of  such  real  contract  in  favor  of 
such  guardian  may  be  made  by  adapting  decree  No.  472,  page  259. 

721.  (Sec.  6315.)  Foreign  guardian  authorized  to  act  as  guard- 
ian in  county. 

[Title.] 

An  authenticated  copy  of  a  commission  of  lunacy  [or, 
idiocy]  on  C.  P.,  a  resident  of  Dearborn  county,  Indiana,  was 


364  JOURNAL    EXTillES.  [SEC.  6316- 

tliis  day  presented  to  this  court  for  record  by  C.  B.,  guard- 
ian of  said  C.  P.,  who  was  appointed  by  the  court  of 

said  Dearborn  county.  Whereupon,  the  court  being  satisfied, 
on  said  examination,  that  said  commission  was  duly  issued 
by  said  court,  the  said  copy  is  hereby  admitted  to  record  in 
this  court,  to  be  recorded  according  to  law. 

And  thereupon  said  guardian  further  presented  evidence, 
satisfactory  to  the  court,  that  said  lunacy  \_or,  idiocy]  still  con- 
tinues, and  filed  his  bond,  as  provided  by  law,  in  the  sum 

of  $ ,  with  L.  E.  and  J.  D.  as  sureties  to  the  approval  of 

the  court,  and  is  now  therefore  authorized  to  possess,  man- 
age, and  dispose  of,  the  real  and  personal  estate  of  the  said 
C.  P.,  situate  in  this  state,  with  like  powers  as  if  appointed 
guaidian  by  this  court. 

722.  (Sec.  6316.)     Entry  of  termination  of  guardianship. 
ITitle.'] 

Satisfactory  proof  being  made  that  C.  M.  is  restored  to 
reason,  it  is  hereby  directed  that  the  guardianship  as  to  him, 
heretofore  granted  by  this  court,  terminate. 

Of  drunkards — 

Sec.  6317.  Laws  relating  to  guardians  for  lunatics,  idiots,  and  im- 
beciles and  their  Avards,  are  applicable  to  drunkards,  and  similar  en- 
tries may  be  made  in  relation  to  drunkards. 

723.  (Sec.  6319.)     Order  that  guarclianship  cease. 
[Title.] 

Proper  notice  having  been  given  of  the  hearing  of  this 
application,  and  satisfactory  proof  being  made  that  the  neces- 
sity for  a  guardian  for  the  said  E.  S.  no  longer  exists,  it  is 
now  ordered  that  such  relation  between  the  said  E.  S.  and 
C.  M.,  heretofore  appointed  as  his  guardian,  cease  ;  and  the 
said  E.  S.  is  hereby  restored  to  the  full  control  of  his  prop- 
erty, as  before  the  appointment. 

Trustees  of  non-residents — 

724.  (Sec.  6320.)     Order   appointing    trustee    for    non-resident 

minor,  idiot,  lunatic,  or  imbecile. 
[Title.] 
Upon  application,  and   it  appearing   to  the  court  that  J. 


-6334.]  GUARDIANS     AND    TRUSTEES.  365 

L.,  who  is  a  minor  [or,  idiot,  ^/c],  and  a  resident  of  Indian- 
apolis, Indiana,  is  the  owner  of  certain  property  in  this  county, 
consisting  of  \iiame  'property  r/encralh/'],  C.  M.  is  herel»y  ap- 
pointed trustee  of  such  minor  [or,  idiot,  etc.'],  to  manage  and 
take  care  of  all  of  the  property  belonging  to  him  situated 
in  this  state. 

l_Co)>clade  as  from  *  In  Entnj  No.  686.] 

Sec.  6323.  See  entries  relating  to  guardians  of  minors. 

725.  (Sec.  6325.)  Order  that  trustee  pay  over  money  to  foreign 
guardian,  etc. 

\_7itle.] 

On  hearing  of  the  petition  [or,  motion]  filed  herein  by  J. 
K.,  guardian  under  the  laws  of  Indiana,  of  J.  L.,  a  minor  [or, 
idiot,  etc.],  and  due  notice  of  the  same  having  been  given 
to  the  trustee  of  said  J.  L  ,  and  the  court  being  satisfied,  on 
examination  of  the  exemplified  copies  of  the  entries  made  ])y 
the court  of county,  Indiana,  in  relation  to  the  ap- 
pointment of  said  guardian,  which  were  by  him  produced  to 
the  court,  that  the  said  .1.  K.  has  authority  to  receive  the 
money  applied  for,  and  that  his  bond  is  sufficient  to  protect 
the  interest  of  said  minor  [or,  idiot,  etc.],  it  is  hereby  ordered 
that  C.  M.,  trustee  of  said  minor  [or,  idiot,  etc.],  pay  over  to 
the  said  J.  K.  the  money  in  his  hands  remaining  [or  any  part 
of  it],  belonging  to  the  estate  of  said  J.  L.,  after  payment  of 
all  proper  charges  and  expenses  couuected  with  his  trustee- 
siiip. 

Trustees,  generally,  and  their  accounting — 

Sees.  6328-34.  Entries  may  be  made  similar  to  entries  relating  to 
executors  or  administrators,  as  the  same  laws  govexn. 
24 


366  JOURNAL   ENTRIES. 

CHAPTER  IV. 

INSOLVENT   DEBTORS. 

Voluntary  assignments — 

727.  (Sec.  6335.)     Deed  of  asssignment  filed. 

728.  (Sec.  6.335.)     Bond  of  assignee  filed  and  approved. 

729.  (Sec.  6335.)     Order  that  assignee  give  additional  undertaking. 

730.  (Sec.  6336.)     Assignee  removed  for  failing  to  file  deed,  or  give  fcond, 

etc. 

731.  (Sec.  6336.)     One  of  two  assignees  allowed  to  act,  on  other  one  fail- 

ing to  qualify. 

732.  (Sec.  6337.)     Resignation  of  assignee  accepted,  etc. 

733.  (Sec.  6337.)     Same — and  remaining  one  allowed  to  execute  trust. 

734.  (Sec.  6337.)     Trustee  appointed  after  death,  resignation,  or  removal 

of  assignee. 

735.  (Sec.  6337.)     Additional  trustee  appointed. 

736.  (Sec.  6338.)     Day  fixed  for  election  of  trustee. 

737.  (Sec.  6338.)     Trustee  chosen  by  creditors  approved  and  appointed. 
73§.  (Sec.  6339.)     Order  for  removal  of  assignee. 

739.  (Sec.  6339.)     Order  on  application  of  surety  that  assignee  give  new 

bond. 

740.  (Sec.  6339.)     Assignee  removed  for  failing  to  give  new  bond. 

741.  (Sec.  6344.)     Conveyance  declared  void,  and  trust  administered  in 

the  common  pleas. 

742.  (Sec.  6344.)     Conveyance  declared  void  in  common  pleas,  and  judg- 

ment certified  to  the  probate  court. 

743.  (Sec.  6344.)     Trustee  appointed  by  probate  court,  etc. 

744.  (Sec.  6344.)     Conveyance   to   defraud   creditors   declared  void,  and 

judgment    certified    to    probate    court — no    notice 
having  been  given. 

745.  (Sec.  6.347.)     Appraisers  of  assets  of  assignor  appointed. 

746.  (Sec.  6348.)     Order  that  homestead  exemption  be  set  off. 

747.  (Sec.  6349.)     Order  that  assignor  attend  for  examination. 

748.  (Sec.  6350.)     Order  for  sale  of  real  estate. 

749.  (Sec.  6350.)     Order  for  private  sale. 

749rt.(Sec.  6350.)     Decree  of  confirmation  and  distribution. 

750.  (Sec.  0350. )     Completion  of  sale  made  by  assignor  approved  and  ordered. 

751.  (Sec.  63-50.)     Judgment  for  enforcement  of  contract  for  sale  made  by  a?- 

signor. 

752.  (Sec.  6350.)     Order  for  sale  of  personal  property  in   usual  course  of  busi- 

ness. 

753.  (Sec.  6351.)     Decree,  in  the  common  pleas,  for  sale  of  real  estate  by  as- 

signee. 


-6335.]  INSOLVENT    DEBTORS.  367 

754.  (Sec.  0352.)  Judgment  for  allowance  of  rejected  claim. 

755.  (Sec.  6353).  Order,  on  bond  filed,  that  claim  be  di.sallowed. 

756.  (Sec.  6356.)  Account  filed,  and  day  fixed  for  hearing. 

757.  (Sec.  6356.)  Order  ileclaring  dividend. 

758.  (Sec.  6356.)  Order  for  payment  of  further  dividend. 

759.  Order  for  payment  of  claim  on  which  no  dividend  has  been  paid. 

760.  (Sec.  6357.)  Extra  compensation  and  attorney's  fees  allowed,  and 

dividend  ordered. 

761.  (Sec.  6357.)     Counsel  fee  allowed. 

762.  Order  for  re-assignment  on  compromise  eflFected. 

763.  Deed  of  assignment  stricken  from  files. 

Assignments  to  avoid  aurkst — 

764.  (Sec.  6359.)     Commissioner  of  insolvents  appointed. 

765.  (Sec.  6367.)     Order  tliat  debtor  enter  into  recognizance. 

766.  (Sec.  6367.)     liecognizance  filed  and  approved. 

767.  (See.  6372.)     Pay  sot  for  creditors  to  appear. 

768.  (Sec.  6372.)     Certificate   granted    to  debtor  of  compliance  with   in- 

solvent laws,  when  no  creditor  resists. 

769.  (Sec.  6373  )     Case  continued  on  application  of  creditor. 

770.  (Sec.  6376  )     Certificate  granted  on  final  hearing. 

771.  (Sec.  6376.)     Petition  dismissed  on  final  hearing. 

772.  (Sec.  6378.)     Petition  dismissed  on  default  for  petition. 

Voluntary  assigniMents — 

727.  (Sec.  6335.)     Deed  of  assif/nrncnt  Hied. 
[Tlllf.'] 

A  deed  of  assignment,  for  the  benefit  of  creditors,  exe- 
cuted by  J.  E.,  doing  l)usinoss  as  J.  E.  &  Co.,  to  H.  L.,  was 
this  day,  at  1:10  o'clock  p.  m.,  filed  in  this  court. 

728.  (Sec.  6335.)     Bond  of  assignee  filed  and  approved. 
[Title.-] 

This  day  came  H.  L,,  and  presented  to  the  court  his  bond 
as  assignee  of  J.  E.,  *  conditioned  according  to  law,  in  the 
sum  of  $ ,  with  T.  S.  and  W.  A.  as  sureties,  which  is  ap- 
proved by  the  court.  And  the  court  appoint  E.  S.,  E.  D., 
and  A.  R.,  three  suitable  disinterested  persons,  as  appraisers 
of  the  property  and  the  assets  of  the  assignor.^ 

'  By  sec.  6347.     May  be  appointed  at  this  time,  or  subsequently,  by  a  separate 
entry.     See  Entry  No.  745. 


368  JOURNAL    ENTRIES.  [SEC.  6335- 

729.  (Sec.  6335.)  Order  that  assignee  give  additional  undertak- 
ing. 

[Title.'\ 

On  motion  of ,  and  it  appearing  to  the  court  that  the 

bond  of  H.  L.  is  insufficient,  it  is  ordered  that  an  additional 
undertaking  be  given  by  the  said  assignee,  in  the  sum  of 


730.  (Sec.  6336.)     Assignee  removed  for  failing  to  file  deed,  or 

give  bond,  and  trustee  appointed. 

ITitle.l 

On  application  of ,  and  it  appearing  to  the  court  that 

a  deed  of  assignment  for  the  beneiit  of  creditors  was  made 
more  than  ten  days  ago  by  A.  S.  to  R.  S.,  and  that  such 
deed  has  not  been  filed  in  this  court  [or,  that  the  said  assignee 
has  failed  to  give  bond],  it  is  now  therefore  ordered  by  the 
court  that  the  said  R.  S.,  as  such  trustee,  be  removed,  and 
that  E.  W.  be,  and  he  hereby  is,  appointed  trustee  in  place 
of  said  R.  S.  [and  his  bond  is  fixed  at  | ]. 

\If  bond  is  given  at  once,  a.  clause  to  that  effect  may  be  added 
to  this  entry,  similar  to  Entry  No.  732.  So  also  any  order  under 
sec.  6340,  for  the  delivery  of  property,  may  be  added.] 

731.  (Sec.  6336.)      One  of  two  assignees  allowed  to  act,  on  other 

one  failing  to  qualify. 

[Title.'] 

It  appearing  to  the  court  that  a  deed  of  assignment  for  the 
benefit  of  creditors  was  made  more  than  ten  days  ago  hy  A. 
S.  to  R.  S.  and  A.  J.,  and  that  the  said  R.  S.  has  failed 
to  give  bond,  it  is  now  therefore,  on  application,  ordered  by 
the  court  that  the  said  R.  S.  be  removed  as  sucli  assignee, 
and  that  A.  J.,  the  remaining  assignee,  having  duly  qualified 
as  such,  be  allowed  to  enter  alone  upon  the  discharge  of  his 
duties. 

732.  (Sec.  6337.)     Resignation  of  assignee  accepted,  and  trustee 

appointed. 
[Title.] 
This  day  came  the  said  R.  S.,  assignee  of  A.  S.,  and  ten- 


-6337.]  INSOLVENT    DEBTORS.  369 

dered  his  resignation  to  the  court ;  and  tlio  court  being  ad- 
vised in  the  premises,  accepts  the  same.  * 

And  E.  W.  h  hereby  appointed  trustee  in  the  place  of  the 
said  I\.  S. 

And  thereupon  comes  tlic  said  E.  "W.,  and  presents  his 
bond  as  sucn  trustee,  conditioned  according  to  law,  in  the 
sum  of  $ ,  with  L.  E.  and  J.  D.  as  sureties,  which  is  ap- 
proved by  the  court. 

733.  (Sec.  6337.)     Resignation  of  one  assignee  accepted,  and  re- 

maining one  allowed  to  execute  trust. 
[Title.] 

As  in  last  to  *,  and  continue:'] — 

And,  it  being  for  the  best  interest  of  the  estate,  it  is  fur- 
ther ordered  that  J.  A.,  the  remaining  assignee,  be  allowed 
to  execute  the  trust  alone. 

734.  (Sec.  6337.)      Trustee   appointed  after   death,   removal,  or 

resignation  of  assignee. 
[Title.] 

It  appearing  to  the  court  that  R.  S.,  the  former  assignee 
of  A.  S.,  has  died  [or,  resigned  ;  or,  been  removed  from  his 
trust],  now,  on  application,  W.  K.  W.  is  hereby  appointed 
trustee  in  the  place  of  the  said  R.  S. 

And  thereupon  comes  the  said  W.  R.  AV.  and  presents  his 
bond  as  such  trustee,  conditioned  according  to  law,  in  the 
sum  of  I ,  with  J.  E.  and  T.  S.  as  sureties,  which  is  ap- 
proved by  the  court. 

735.  (Sec.  6337.)     Additional  trustee  appointed. 
[Title.] 

This  day  an  application  was  presented  by  certain  cred- 
itors of  A.  S.,  the  assignee  herein,  for  the  appointment  of  an 
additional  trustee.  And  the  court  being  satisfied  that  such 
application  is  signed  by  a  majority  of  the  creditors  in  amount, 
and  that  good  cause  exists  for  such  appointment,  herebv  ap- 
points R.  W.  as  such  additional  trustee  of  the  said  A.  S.,  and 
fix  his  bond  at  $ . 

[If  bond  is  at  once  given,  add  clause  as  after  Ko.  732.] 


370  JOURNAL   ENTRIES.  [SEC.  6338- 

736.  (Sec.  6338.)     Day  fixed  for  declion  of  trustee. 
[Title.'] 

On  petition  presented  and  filed  with  the  court,  signed  by 
creditors  of  C.  M.,  the  assignor  herein,  as  required  by  law,  pray- 
ing permission  to  elect  a  trustee  to  execute  the  trust,  in  place 
of  the  assignee  of  the  said  C.  M.,  the  court  being  satisfied 
that  the  said  creditors  own  not  less  than  one  thousand  dol- 
lars of  the  debts  of  the  said   C.  M.,  fix  Monday,  the  

of  day ,  18 — ,  for  such   election,  and   direct  that  notices 

be   sent  accordingly,  hj  mail   \or  specify  other  means],  to  all 
the  creditors  of  the  assignor  aforesaid. 

737.  (Sec.  6338.)      Trustee,  chosen  by  creditors,  approved  and  ap- 

pointed. 

[Title.] 

This  day  came  "VV.  C,  and  tendered  to  the  court  his  bond 
as  trustee  of  the  creditors  of  A.  S.,  with  J.  D.  and  L.  E.  as 
sureties.  And  it  appearing  from  the  record  of  proceedings 
of  a  meeting  heretofore  held  by  the  creditors  of  said  A.  S., 
duly  made  and  signed  and  filed  in  this  court,  that  the  said 
W,  C.  was  elected  by  said  creditors  in  due  form  of  hnv,  the 
court  do  hereby  approve  said  choice  ;  and  the  said  AV.  C.  is 
hereby  appointed  trustee  of  the  said  A.  S.  in  place  of  E.  S., 
to  whom  the  assignment  was  made,  who  is  hereby  removed 
from  such  trust.  And  the  bond  of  the  said  W.  C.  is  hereby 
approved. 

738.  (Sec.  6339.)     Order  for  removal  of  assignee  or  trustee. 
[7'itle.] 

Use  form  of  Entry  No.  730,  above. 

739.  (Sec.  6339.)     Order,  on  application  of  surety,  that  assignee 

give  new  bond. 

[Title.] 

Application  having  been  made  by  W.  C,  one  of  the  suetiess 
on  the  bond  of  H.  L.,  as  assignee  of  J.  E.,  to  be  released 
therefrom,  and  the  court  being  saitisfied  of  the  reasonable- 
ness of  such  request,  after  full  hearing  of  the  cs^se,  order  that 


-0344.]  INSOLVENT    DEBTORS.  371 

said  IT.  L.  give  a  new  bond  as  such  assignee,  with  sufficient 

sureties,  within  days,  and  that  thereupon  his  former 

sureti(!S  be  released  from  furtlior  liability. 

740.  (Sec.  6339.)     A-^signce  removed/or  failing  to  give  new  bond. 
[Tide.] 

Modify  Eiitrij  No.  730. 

Sec.  G344.  Conveyances  to  defraud  creditors  may  by  this  section  be 
declared  void  at  the  suit  of  any  creditor,  whether  he  has  reduced  hi.s 
claim  to  judgment  or  not ;'  and,  being  so  declared,  the  estate  will  be 
administered  for  the  benefit  of  creditors  by  the  court  in  which  the  suit 
is  brought,  or  by  the  ])rol)ate  court,  as  follows  : 

Where  notice  of  tlu;  suit  is  given  as  provided  by  sec.  G344,  the  court 
of  common  pleas  declaring  the  conveyance  void  may  administer  the 
trust  both  as  to  the  creditors  who  are  parties  as  aforesaid,  and  as  to 
those  who  have  not  come  in  and  been  so  made  parties  ;'  (»r  may  cortifv 
the  judgment  to  the  j)rol)ate  court.  Xo  method  of  administering  this 
trust  by  the  common  pleas  is  ])ointed  out,  but  UKjst  likely  this  court 
should,  in  this,  f )llo\v  the  metliod  prescribed  for  the  probate  court; 
that  is,  ai)point  a  trustee,  who  shall  have  the  same  ])owers  as  if  ap- 
pointed by  the  probate  court,  as  ))rescribed  in  this  chapter.  This  seems 
to  be  the  only  method  reaching  the  creditors  who  are  not  {)arties  to  the 
suit. 

It  this  view  is  correct,  make  the  entry  as  fillows: 

741,  (Sec.  6344.)      Conveyance  declared  void,  and  trust  adniinis- 

iered  in  the  common  pleas  court  by  decree 
for  sale. 

[Title.] 

Finding  III.,  page  00,  or,  if  by  default,  Finding  IV.,  paqe 
100,  and  continue  :] — And  the  court  further  find  that  the  con- 
veyance of  the  property  described  in  the  petition  was  made 
with  intent  to  hinder,  delay,  and  defraud  creditors,  as  the 
said  plaintiff  has  in  liis  petition  alleged. 

It  is  therefore  ordered  and  adjudged  by  the  court  that  the 
said  deed  of  conveyance  from  R.  M.  to  C.  D.,  of  the  follow- 
ing real  estate,  to  wit  [describe'],  be,  and  the  same  is  hereby, 

»  Sec.  6344.     See  also  Combs  v.  Watson,  32  O.  S.  228. 
="  Sec.  6344. 


372  JOURNAL    ENTRIES,  [SEC.  6344- 

declared  void,  and  to  be  of  no  force  or  effect  in  law  to  af- 
fect the  title  of  the  said  premises,  or  to  convey  the  same  to 
the  said  C.  D.  [f] 

And  the  court  further  find  that  notice  of  the  pendency  and 
object  of  this  suit  was  duly  published  by  the  plaintiff,  for 
notification  of  the  creditors  of  the  said  R.  M.,  and  that  E.  F. 
and  G.  H.  have  filed  answers  in  this  case,  and  have  other- 
wise complied  with  the  law,  as  creditors  desiring  to  share  in 
the  benefits  of  this  action,  and  it  is  therefore  adjudged  by 
the  court  that  the  property  in  the  petition  described  be  sub- 
jected to  the  payment  of  the  debts  due  to  the  plaintifif  and 
the  other  creditors  above  named,  from  the  said  R.  M.;  and 
for  that  purpose  *  D.  W.  S.  is  hereby  appointed  trustee,  with 
full  power  allowed  by  the  statute  in  such  cases,  to  take  pos- 
session of  said  premises,  and  to  sell  the  same  and  administer 
the  proceeds  for  the  benefit  of  creditors. 

And  it  is  ordered  that  the  said  D.  W.  S.,  before  entering 
upon  his  duties,  give  bond  to  the  State  of  Ohio  in  the  sum 

of  $ ,  to  the  approval  of  the  court,  conditioned  for  the 

faithful  performance  of  his  duties  as  such  trustee. 

And  thereupon  comes  the  said  D.  W.  S.,  and  as  trustee 
as  aforesaid  presents  his  said  bond,  with  C.  W.  and  T.  S.  as 
sureties,  to  the  approval  of  the  court.^ 

Tliis  trustee  will  proceed,  as  a  trustee  appointed  by  the  probate  court, 
to  recover  possession,  by  action  if  necessary,  of  the  real  estate  so  fraud- 
ulently conveyed,  and  then  to  sell  the  same  and  distribute  proceeds  un- 
der direction  of  the  common  pleas  court. 

The  entries  will  be  so  similar  to  entries  of  sale,  confirmation,  etc.,  in 
case  of  sale  on  forecloseure  of  mortgage,  that  separate  entries  will  uot 
be  given  here. 

742.  (Sec,  6344.)      Conveyance   declared    void   by   tlie    coninion 
pleas   court,  and  judgment   certified  to  the 
probide  court. 
[Tdle.'] 
As  ill  lad  lu  ^.  and.  continue :'] — it  is  ordered   by  the   court 

1  This  clause  approving  bond  may  of  course  be  made  as  a  separate  entry. 


6346.]  INSOLVENT    DEBTORS.  373 

that   a  copy   of  tliis  judgment  be  certified    to  the  probate 

court   of  ,  Ohio,  for  the  appointment  of  a  trustee  and 

further  proceedings  in  administering  the  property  assigned 
as  aforesaid. 

l_Add  amj  order  as  to  costs. '\ 

On  tlie  certified  copy  of  the  above  judgment  being  filed  in  the  pro- 
bate court,  a  trustee  will  be  appointed  under  sec.  6344.  Entry  may 
be  as  follows  : 

743.  (Sec.  6344.)     Trustee  appointed  by  probate  court,  on  certified 

copi/  of  last  judgment  being  filed. 

[Title.-] 

A  certified  coyiy  of  a  judgment  entered  by  the  court  of 

common  pleas  of county,  Ohio,  was  this  day  filed  in  this 

court;  and  it  appearing  therefrom  that  said  court  has  declared 
void  a  conveyance  made  by  R.  M.  to  C.  D.  of  the  following 
described  real  estate,  to  wit  [(lescrib('].  And  ordered  that  the 
same  be  subjected  to  the  ])ayment  of  the  debts  due  the 
plaintifi*  and  otliei-  creditors  from  the  said  ]\.  M.;  thereupon 
[conclude  as  from  *  in  Entrg  No.  741]. 

The  trustee  appointed  as  above  will  act  under  the  laws  relating  to 
assignees  of  insolvent  debtors  in  the  probate  court,  in  the  sale  of  prop- 
erty and  distribution  of  proceeds. 

In  case  notice  of  suit  is  not  given,  under  sec.  6344. 

If  notice  is  not  given  as  provided  by  sec.  6344,  the  judgment  de- 
claring the  conveyance  void  must  be  certified  to  the  probate  court  for 
the  appointment  of  trustees.     Make  entry  as  follows  : 

744.  (Sec.  6344.)     Conregance  declared  roid  by  common  pleas, 

and  judgment  certified  to  probate  court. 
[Title.] 

As  in  decree  No.  741  to  [t],  and  continue:] — 

And  it  appearing  that  no  notice  of  the  pendency  and  ob- 
ject of  this  suit  was  published,  for  notification  of  other  cred- 
itors, it  is  ordered  that  a  copy  of  this  judgment  be  certified 

to  the  probate  court  of  county,  for  the  appointment  of 

a  trustee,  and  further  proceedings  in  administering  the  prop- 
erty as  aforesaid. 

[Add  order  as  to  costs.] 


374  JOURNAL  ENTRIES.  [SEC.  6347- 

The  entry  appointing  trustee,  in  the  probate  court,  may  be  the 
same  as  No.  743,  and  the  trustee  will  act  as  the  trustee  appointed 
in  case  of  notice  given. 


745.  (Sec.  6847.)-    Appraisers  of  assets  of  assignor  appoiriied} 
[Title.] 

The  court  hereby  appoint  T.  N.,  E.  B.,  and  E.  M.,  suitable 
and  disinterested  persons,  appraisers  of  the  assets  of  the  as- 
signor above  named. 

746.  (Sec.  6348.)     Order  that  homestead  exemption  be  set  off. 
[Title.] 

It  appearing  to  the  court  that  the  appraisers  herein  have 
failed  to  set  oiF  a  homestead  exemption  to  the  assignor,  tiie 
court  order  that  the  same  be  done  by  said  appraisers  forth- 
with. [Or  say,  the  court  hereb}'  appoint  L.  D.,  J.  M.,  and  T. 
S.  as  appraisers  to  set  ofi"  and  assign  the  same.] 

747.  (Sec.  6349.)     Order  that  assignor  attend  for  examination. 
[Title.] 

iSTow  comes ,  and  applies  for  an  order  for  the  examina- 
tion of  the  assignor  herein;  and  the  court  order  that  F.  H.  be 
appointed  referee,  and  that  C.  N.,  the  assignor,  be  ordered  to 
appear  before  said  F.  H.,  referee,  at  his  office,  No.  — ,  — — 
street,  on  the day  of- •,  18 — ,  for  such  examination. 

Sec.  63-49.  Orders  to  pi'ovent  any  fraudulent  transfer  of  prop- 
erty niu}'  be  made  in  form  similar  to  orders  of  the  same  kind  to  be 
found  in  other  proceedings. 

The  real  estate  of  an  insolvent  debtor  may  be  sold  under 
proceedings  in  the  probate  court,  or,  in  certain  cases  as  pro- 
vided by  sec.  6351  (amended  8*2  O.  L.  14),  proceedings  for 
sale  may  be  instituted  by  the  assignee  in  the  court  of  common 
pleas. 


'If  appointed  when  bond  is  filed,  see  entry  No.  728. 


-SEC.  6350]  INSOLVENT  DEBTORS.  374a 

In  the  probate  court  the  assignee  or  trustee  appears  to  have 
power  to  sell  without  a  special  order  in  the  same  manner  as 
in  case  of  personal  property,  but  it  is  better  for  him  to  obtain 
a  decree  of  court,  so  that  no  question  may  arise  upon  the 
title. 


748.  (6350,  77  O.  L.  189.)     Order  for  sale  of  real  estate. 

[Title.'] 

C.  X.,  the  assignee  herein,  having  made  application  for  an 
order  to  sell  the  [or,  certain  of  the]  real  estate  included  in 
the  assignment  to  hini,  and  having  [)resented  to  the  court  the 
return  of  the  api)raiisers  heretofore  appointed,  the  court  now, 
upon  examination,  find  said  appraisement  in  all  respects  reg- 
ular, and  according  to  law,  and  do  thereupon  approve  the 
same,  *  and  authorize  the  assignee  to  sell  said  real  estate,  ac- 
cording to  law,  at  pul)lic  auction  on  the  \>vqx\\\?,qa  [or  any  other 
place  (/esignated],  for  cash  [or  other  terms  designated]. 

If  the  ioife  has  asked  that  the  real  estate  he  sold  free  of  her  con- 
ting  e7U  dower,  say  : 

And  E.  D.,  the  wife  of  the  assignor,  having  filed  her  answer 
asking  therefor,  it  is  ordered  that  said  real  estate  be  sold  free 
of  her  contingent  right  of  dower. 

If  the  wife  has  joined  with  her  husband  in  a  mortgage  of  the 
real  estate,  say : 

And  E.  D.,  the  wife  of  the  assignor,  having  joined  with  her 
husband  in  a  mortgage  of  the  said  real  estate,  it  is  ordered 
that  it  be  sold  free  from  her  contingent  right  of  dower. 

If  the  assignor  has  mottgaged  the  real  estate  for  paymeid  of 
purchase  money,  say  : 

And  the  assignor  having  executed  a  mortgage  of  said  real 
estate  to  secure  the  payment  of  the  purchase  money,  it  is  or- 
dered that  it  be  sold  free  from  the  contingent  right  of  dower 
of  E.  D.,  wife  of  the  said  assignor. 


3746  JOURNAL  ENTRIES.  [SEC,  6350- 

And  it  is  ordered  that  the  assignee  make  return  of  his  pro- 
ceedings to  this  court. 

Sec.  6350.     For  orders  for  re-appraisement,  make  entries  similar 
to  entries  Nos.  294  and  295,  page  157. 


749.  (Sec.  6350,  77  0.  L.  189.)  Order  for  private  sale  of  real 
estate. 

[Title.'] 

It  being  shown  to  the  court  that  it  would  be  to  the  advan- 
tage of  the  creditors,  the  assignee  is  ordered  to  sell  the  real 
estate  of  the  assignor  at  private  sale  for  not  less  than  two- 
thirds  of  its  appraised  value,  and  on  the  following  terms,  to 
wit,  [iiame  terms'] ;  and  to  make  return  of  his  proceedings 
within days. 


749a.  (Sec.  6350,  77  O.  L.  189.)  Decree  of  confirmation  and 
distribution. 

[Title.] 

This  cause  coming  on  for  hearing  upon  the  return  of  C.  N., 
the  assignee,  of  his  proceedings  and  sale  of  real  estate,  the 
court  after  careful  examination  being  satisfied  that  tiie  sale 
has  in  all  respects  been  legally  made,  does  hereby  approve  and 
confirm  the  same  and  order  that  the  said  C.  ^N".,  as  such  as- 
signee, make  to  the  purchaser,  L.  M.,  a  good  and  sufficient 
deed  of  the  premises  so  sold  free  from  all  liens  for  all  debts 
due  by  the  assignor  (and  from  the  contingent  dower  interest 
of  E.  1).,  the  wife  of  the  assignor). 

And  the  court  coming  now  to  distribute  the  proceeds  of  the 

sale,  amounting  to  $ ,  find  that  the  mortgage  of  P.  L.  is 

the  first  lien  on  the  premises  sold  and  that  there  is  due  there- 
on the  sum  of  $ .     And  the  court  find  that  the  just  and 

reasonable  value  of  the  contingent  dower  interest  of  the  said 
E.  D.  in  said  real  estate,  after  the  payment  of  tlie  mortgag 
of  P.  L.,  hereafter  mentioned,  is dollars. 


-SEC,  6350.]  INSOLVENT  DEBTORS.  375 

It  is  therefore  ordered  that  the  assignee  pay . 
First,  the  costs  of  the  proceeding,  taxed  at  $ . 


Secondly,  to  the  said  P.  L.  the  sum  of  § ,  and  thirdly, 

to  the  said  E.  D.  the  sum  of  § ,  in  lieu  of  her  contingent 

dower   interest,    and   that   the   balance   of  the  proceeds,  viz. 
$ ,  i-einaiii  in  the  hands  of  the  assignee 


750.  (Sec.  6350.)     Completion,  by  assignee,  of  sale  made  by  as- 
signor approved  and  ordered. 
[Title?^ 

This  cause  being  this  day  heard  on  application  of  the  as- 
signee for  tlie  approval  by  the  court  of  the  completion  of  a 
certain  contract  for  sale  of  real  estate  made  by  the  assignor 
above  named,  and  due  notice  of  this  hearing  having  been 
given  to  all  parties  in  interest,  the  court  lind  tliat  X.  S.,  the 

assignor,  did,   on  the   day  of ,  18 — ,  enter  into  a 

[written]  contract  with  C.  F.  for  the  sale  and  conveyance  of 
the  following  described  premises,  to  wit  \jl€scribe'\;  and  that 
[here  make  finding  of  any  pagrnent  or  part  performance  of  the 
contract],  *  and  that  there  still  remains  due  on   said  contract 

from  C  F.  the  sum  of  § ,  and  that  he  is  ready  and  willing 

to  complete  the  same. 

It  is  therefore  ordered  and  decreed  that  the  said  A.  E.,  as- 
signee, make  and  execute  to  the  said  C.  F,  a  good  and  suf- 
ficient deed  for  the  premises  above  described,  and,  upon  the 

payment  of  the  said  sum  of  8 ,  deliver  the  same  to   the 

said  C.  F. 

And  it  is  ordered  that  the  said  pay  the  costs  of  this 

proceeding. 


751.  (Sec.  6350.)  Judgment  for  enforcement  of  contract  for  sale 
made  by  assignor. 

[Title.] 

As  in  last  to  *,  and  continue:] — and  that  the  assignee  herein 
is  entitled  to  the  specific  execution  of  the  said  contract. 


376  JOURNAL  ENTRIES.  [SEC.  6350- 

It  is  therefore  ordered  and  decreed  that  upon  full  payment 
being   made  by  the  plaintiff',  assignee  as  aforesaid,  [or  state 

specifically  what  he  is  to  do'],  the  said  C.  F.  do  within days 

from  the  date  of  this  decree,  convej-  the  premises  in  the  peti- 
tion described  to  the  plaintiff,  as  such  assignee,  by  good  and 
sufHcient  deed;  and  that  in  default  thereof  this  decree  have 
the  same  operation  and  effect  as  said  deed. 

\_u4.d<.i  order  as  to  costs.] 

Orders  for  the  private  sale  of  personal  property  may  be  made 
similar  to  entry  !No.  748,  and  a  sale  for  less  than  two-thirds  of  the 
appraised  value  may  he  ordered,  for  which  modify  entry  No.  603. 

For  order  that  sale  be  at  public  auction,  after  j^ersonal  property 
failing  to  sell  at  private  sale,  modify  entry  JNo.  604. 


752.  (Sec.  6350.)  Order  that  assignee  sell  fersonal  property  at 
private  sale  in  usual  course  of  business. 

[Title.] 

On  application  of  the  assignee  herein,  and  for  good  cause 
shown,  it  is  ordered  by  the  court  that  said  assignee  proceed 
to  sell  the  goods  assigned  to  him  at  private  sale,  in  the  usual 
course  of  business,  at  not  less  than  two-thirds  of  theappraised 
valne  thereof,  and  continue  until  further  order  of  court. 

For  order  that  the  assignee  compromise  or  sell  desijerate  claims, 
modify  entries  Nos.  605-7. 


753.  (Sec.  6351,  82  0.  L.  190.)  Decree,  in  common  'pleas  court 
for  sale  of  real  estate  by  assignee. 

[Title.] 

And  now  this  cause  came  on  to  be  heard  upon  the  petition 
of  A.  B.,  assignee  of  A.  C.  [state  pleadings  or  default  according 
to  facts,  and  continue  :]  The  court  further  find  that  the  plaint- 
iff, as  assignee  of  A.  C,  as  in  his  petition  set  fourth,  is  entitled 


-6352.]  INSOLVENT  DEBTORS.  377 

to  have  the  real  estate  described  in  the  petition  sold,  in  this 
court,  by  reason  of  its  being  incumbered  with  various  liens. 

And  the  court  find,  upon  the  petition  of  the  phiintiff  and 
the  cross-petition  of  the  defendant,  E.  F.,  and  the  evidence, 
that  tlie  mortgage  set  up  in  the  cross-petition  of  the  said  E. 
F.  was  duly  executed  and  delivered  to  said  E.  F.  by  the  said 
A.  C.  and  M.  C,  his  wife,  and  that  tlie  same  was  duly  re- 
corded in  IJook ,  i»agu  — ,   of  the  Records  of  Mortgages 

of county,  and  that  it  is  the  lirst  and  best  lien  on  the 

})remises  in  the  [letition  described  ;  and  that  there  is  due  on 
said  mortgage,  with  interest  to  the  first  day  of  this  term,  the 
sum  of  $ . 

And  the  court  further  find  [make  findings,  similar  to  last,  upon 
each  lien.'] 

It  is  therefore  oi'dered  that  said  premises  be  appraised,  ad- 
vertised, and  sold,  as  n\)on  execution,  free  from  all  del;ts  due 
from  the  assigiioi",  and  tree  from  the  contingent  dower  inter- 
est of  the  said  E.  I).,'  and  that  an  order  of  sale  issue  there- 
fore to  A.  I>.,  the  assignee  of  A.  C,  and  dii-ecting  him  to 
bring  the  proceeds  of  said  sale  into  this  court  for  further 
order. 


The  sale  must  be  confirmed,  the  assignee  ordered  to  make  a  deed, 
and  tlio  monoy  bii  distributed  as  on  foreclosure  of  a  mortgage.  For 
such  decree,  modify  entry  No.  T-tOa. 


754.  (Sec.  6352.)     Judgment  for  allowance  of  rejected  claim. 

[Title.'] 

Finding  III.,  page  99,  or,  if  by  default,  Finding  1 V.,  page  100, 
and  continue-] — The  court  further  find  that  the  claim  of  the 
plaintiff"  against  the  estate  of  the  said  E.  F.  is  just,  and  that 

he  is  entitled  to  have  the  same  allowed  in  the  sum  of 

dollars. 

It  is  therefore  considered  and  adjudged  that  the  said  de- 

'As  to  when  this  provision  should  be  inserted  see  sec.  6350,  77  O.  L.  189. 


378  JOURNAL    ENTRIES.  [SEC.   6353- 

fendant,  C.  J).,  as  assignee  of  the  said  E,  F,,  allow  the  said 
claim  of  the  plaintiff,  as  above  found,  in  the  settlement  of  his 
trusts. 

It  is  further  considered  that  the  said recover  from  the 

said his  costs  herein  expended,  taxed  at  ^ . 

755.  (Sec.  6353.)      Order,  on  bond  filed,  that  claim  he  disallowed 
[ntle.] 

This  day  came ,  and  filed  in  this  court  a  written  requi- 
sition on  the  assignee  to  disallow  the  claim  of  J.  F.,  in  the 

sum  of dollars,  and  also  filed  a  bond  to  the  assignee  in 

the  sum  of dollars,  conditioned  according  to  law  in  such 

cases,  with  J.  X.  and  L.  A.  as  sureties,  which  is  approved  by 
the  court ;  and  thereupon  it  is  ordered  by  the  court  that  the 
assignee  disallow  the  said  claim. 

756.  (Sec.  6356.)     Account  filed,  and  day  fixed  for  hearing. 
[Title.] 

This  day  came  the  assignee,  and  filed  his  first  \_or  othe)^],  par- 
tial [or,  his  final]  account.     And  the  court  fix  the  day 

of  ,  18 — ,  for  hearing  of  the  same. 

Sec.  6356.  For  entry  of  account  allowed,  modify  Entry  No.  652  or 
653. 

For  allowance  after  exceptions  filed,  modify  Entry  No.  654. 
For  account  disallowed,  modify  Entry  No.  655. 

757.  (Sec.  6356.)     Order  declaring  dividend. 
[Title.] 

On  motion  of  the  assignee,  and  it  appearing  that  he  has 
in  his  hands  for  distribution  among  the   unsecured  creditors 

of  H.  S.  &  Co.  the  sum  of  § ,  and  that  the  allowed  claims 

of  such  creditors  amount  to  § ,  it  is  ordered  that  the  as- 
signee declare  and  pay  to  said  creditors  a  first  [and  final] 
dividend  of per  cent,  on  the  amount  of  their  claims,  re- 
spectively. 

[If  riotice  in  addition  to  the  usual  way  is  ordered  add  it  here.] 

758.  (Sec.  6356)     Order  for  jjayment  of  further  dividend. 
[Title.] 

It  is  herebv  ordered  that  C.  R.,  assignee,  declare  and  pay 


-6357.]  INSOLVENT    DEBTORS.  37S 

a  further  dividend  of  two  per  cent  on  all  claims  which  have 
been  proved  and  allowed  against  the  estate  of  the  abova- 
jianu'd  assignors. 

759.   Order  for  payment  of  claim  on  which   no  dividend  has  been 

paid . 

\Tdle.\ 

It  appearing  to  tlie  conrt  that  E.  J.  has  presented  a  claim, 

duly  verified,  to- the  assignee,  amounting  to  $ ,  on  which 

ho  lias  received  no  dividend,  it  is  ordered  that  the  assig-nee 
pay  to  the  said  E.  J.,  on  account  of  the  same,  any  moneys  in 
his  hands,  or  that  may  come  into  his  hands,  not  otherwise 
required,  not  exceeding  the  percentage  paid  to  other  cred- 
itor?^. 

7G0.  (Sec.  0357.)     Extra   compensation   and  attorney's  fee   al- 

alloiced,  and  dividend  ordered. 
[Title.-] 

Upon  application  nnulc  by  II.  L..  assignee,  supported  by 
his  sworn  statement  on  tile,  it  is  now  ordered  that  he  be,  and 
hereby  is,  allowed  the  sum  of dollars,  as  extra  compen- 
sation for  services  as  assignee,  in  addition  to  the  statutory 
allowance  for  ordinary  services. 

It  is  further  ordered  that  the  sum  of  dollars  be  paid 

as  counsel  fee  by  said  assignee  [in  addition  to  payments  be- 
fore made],  as  set  forth  in  said  affidavit,  said  payment  to  be 
in  full  for  services  to  be  rendered  in  the  matter  of  said  es- 
tate hereinafter. 

Said  assignee  is  now  authorized  and  directed  to  declare 
and  pay  a  iinal  dividend  of  said  estate,  embracing  the  whole 
amount  remaining  in  his  hands  after  paying  the  costs  of  the 
assignment,  said  dividend  to  be  declared  within  thirty  days 
from  this  date. 

761.  (Sec.  6357.)     Counsel  fee  allowed  in  assignment  case. 

[Title:] 

This  cause  coming  on  for  hearing  upon  the  application  of 

G,  n.,  assignee,  for  allowance  of  S ,  to  be  paid  to  him  as 

counsel  fee,  the  court  being  fully  advised,  tind  that  he  is  en- 
titled thereto,  and  allow  the  said  claim. 
25 


380  JOURNAL    ENTRIES.  [SEC.  6357- 

762.  Order  for  re-assignment  on  compromise  effected. 
{Title.'] 

On  motion,  and  it  appearing  to  the  court  from  the  vouch- 
ers filed  herein,  and  from  the  affidavit  of  the  assignor,  also 
filed  herein,  that  the  claims  of  all  the  creditors  of  said  as- 
signor have  been  fully  satisfied  by  compromise  or  settlement, 
it  is  hereby  ordered  and  directed  that  said  assignee,  F.  AV., 
re-assign  and  re-convey  to  said  F.  G.  the  property  conveyed 
by  the  deed  of  assignment  herein  ;  and  this  entry,  in  default 
thereof,  shall  stand  for  and  have  the  force  and  effect  of  such 
assignment. 

763.  Deed  of  assignment  stricken  from  files. 
{Title.'] 

This  cause  coming  on  to  be  heard  on  the  citation  against 
"W.  C,  the  assignee  herein,  to  show  by  what  authority  he 
claimed  to  act  as  assignee  of  said  F.  W.,  and  to  show  cause 
why  the  deed  of  assignment  to  him  should  not  be  stricken 
from  the  files,  and  it  appearing  to  the  court,  from  the  evi- 
dence and  proofs,  that  those  who  were  creditors  at  the 
date  of  such  assignment  have  been  fully  paid  and  satisfied, 
and  that  there  are  now  no  creditors  wlio  have  any  rights  un- 
der said  deed,  and  that  said  deed  was  wrongly  filed,  it  is 
hereby  ordered  that  said  deed  be  stricken  from  the  files  of 
this  court,  and  returned  to  said  F.  W.;  and  the  bond  filed  by 
said  W.  C.  is  hereby  canceled  and  ordered  to  be  returned  to 
him. 

Assignments  to  avoid  arrest — 

764.  (Sec.  6359.)     Commissioner  of  insolvents  appointed. 
In  the  matter  of  the  appointment  ^ 

of  C.  D.  to  be  commissioner  > 
of  insolvents.  j 

C.  H.  is  hereby  appointed  commissioner  of  insolvents  for 
this  county,  for  the  term  of  three  years  from  the  date  of  this 

entry,  and  his  bond  is  fixed  at  $ . 

And  now  comes  the  said  C.  II.,  and  presents  his  bond,  con- 
ditioned according  to  law,  in  the  sum  of  $ ,  with  L.  E. 

and  E.  S.  as  sureties,  to  the  approval  of  the  court. 


-6372.]  INSOLVENT    DEBTORS.  381 

705.  (Sec.  6367.)     Order  that  debtor  enter  into  recognizance. 

[Title.] 

On  application,  and  good  cause  shown,  it  is  ordered  by  the 
court  that  Yj.  L.,  the  petitioner  herein,  enter  into  a  recogni- 
zance to  the  State  of  Ohio,  with  sufficient  security,  condi- 
tion-ed  that  he  will  appear  at  the  proper  time  and  prosecute 
his  said  petition,  filed  herein,  and  abide  the  order  of  the  court 
thereon. 

When  the  recognizance  is  filed,  record  its  approval  as  follows: 

766.  (Sec.  6367.)     Becognizance  filed  and  approved. 
[Title.-] 

Now  comes  E.  L.,  and  enters  into  recognizance,  as  re- 
quired by  tho  order  of  court  in  this  case,  with  W.  P.  and  C. 
W.  as  sureties,  to  the  approval  of  the  court. 

767.  (Sec.  6372.)     Day  set  for  ci'editors  to  appear. 
['Jitlc] 

Petition  for  relief  under  the  law  relating  to  insolvents  be- 
ing filed  herein,  the  court  set  tlie   same  for  hearing  on  the 

day  of  ,  18 — ;  at  which  time  it  is  directed  that  the 

creditors  of  the  said  E.  L.  be  called. 

768.  (Sec.  6372.)      Certificate  granted   to    debtor  of  compliance 

with  insolrent  lairs,  when  no  creditor  re- 
sists. 

[Title.] 

This  day  the  petition  herein  came  on  to  be  heard,  and  the 
court  being  satisfied  that  notice  as  required  by  law  has  been 
given  of  this  application,  and  no  cause  [or,  no  suffiicient 
cause]  being  shown  to"  the  contrary,  the  court  *  grant  to  the 
said  E,  L.  the  relief  prayed  for,  and  [upon  his  paying  the 
costs  herein  adjudged]  ^  a  certificate  of  his  having  complied 
with  the  law  relating  to  insolvents,  and  of  his  being  released 
from  liability  to  arrest  on  account  of  any  debt  or  claim  named 
in  his  schedule  of  debts. 

1  Bv  sec.  6377. 


882  JOURNAL   ENTRIES.  [SEC,  6373- 

Aiid  it  is  adjudged  that  the  said  petitioner  pay  the  costs 
of  this  proceeding  and  the  costs  before  the  commissioners, 
and  execution  is  awarded.^ 

769.  (Sec.  6373.)      Case  continued  on  applicntion  of  creditor. 
[Title.] 

On  calling  this  case  for  hearing,  G.  D.,  one  of  the  credit- 
ors, desiring  a  further  examination   of  the  petitioner  to  be 

made,  the  case  is  continued  for  that  purpose  to  the day 

of ,  18 — ,  at  10  o'clock  a.  m.     And  it  is  directed  that 

such  further  examination  be  made,  as   provided  by  law,  be- 
fore the  commissioner  [or  other  person  named]^  and  that  the 

petitioner  attend  at  his  office  for  that  purpose  on  the 

day  of ,  18 — . 

770.  (Sec.  6376.)     Certificate  granted  on  final  hearing. 
[Title.'] 

This  cause  came  on  for  final  hearing  this  day  upon  the  pe- 
tition, the  written  examination  of  the  petitioner,  read  in  evi- 
dence, and  the  testimony  of  witnesses.  And  on  full  consid- 
eration thereof  the  court  *  [conclude  as  from  *  in  Entry  JSo. 
768]. 

771.  (Sec.  6376.)     Petition  dismissed  on  final  hearing. 
[Title.] 

As  ill  last  t'l  *,  and  conclude:] — dismiss  the  petition  of  the 
said  E.  L. ;  and  it  is  adjudged  that  he  pay  all  the  costs  herein 
that  have  accrued  on  his  behalf.^ 

772.  (Sec.  6378.)     Application  dismissed  on  default  for  petition. 
[Title.]  "     ' 

The  applicant  herein  having  failed  to  file  his  petition  within 
the  time  required  by  law,  his  application  to  be  released  from 
liability  to  arrest  under  the  law  relating  to  insolvents  is  hereby 
dismissed,  and  it  is  adjudged  that  he  pay  the  costs  of  this 
proceeding. 

» By  sec.  6377. 


-G408.]  GENERAL    PROVISIONS.  383 


CHAPTER  VTI. 

GENERAL  PROVISIONS. 

775.  (Sec.  0402.)  Notice  of  filing  accounts  ordered. 

776.  (Sec.  6402.)  Publication  of  riotice.s  approved. 

777.  (Sec.  6408.)  Notice  of  appeal  from  probate  to  common  pleas  court. 

778.  (Sec.  6408.)  Bond  for  appeal  filed  and  approved. 

779.  (Sec.  6410.)  Judgment  in  common  pleas  on  appeal. 

780.  (Sec.  6413.)  <,)rder  for  investment  of  money  pending  suit,  etc. 

775.  (Sec.  6402.)     Notice  of  filing  accounts  ordered. 

[Title.'] 

The  following  accounts  having  been  filed  in  this  court,  it 
is  ordered  that  notice  thereof  be  published  in  the  Cincinnati 

Daily  Gazette,  and  that  they  will  be  for  hearing  on  the 

day  of ,  18 —  [i(Ot  less  tJiaii  three  veeks  from  day  of  pub- 

lication'].     Which  said  accounts  are  as  follows,  to  wit  : 

Account  current  of  E.  T.,  executor  of  C.  D.,  deceased. 

Final  account  of  C.  B.,  guardian  of  C.  D.,  a  minor, 
etc.  etc. 

77(>.  (Sec.  6402.)     Publication  of  notice  approved. 

[Title.-] 

This  day  proof  of  publication  of  notice  of  filing  accounts 
and  vouchers  of  administration  [or,  guardianship,  trustee- 
ship, or,  of  proceedings  in  assignment]  was  made,  and  the 
court  hereby  approve  the  same,  and  order  the  notice  afore- 
said to  be  entered  upon  the  journal  of  the  court  in  full ; 
said  notice  is  as  follows,  viz. : 

[Copy  notice  in  fidl.] 

Sec.  6408.  Notice  of  appeal,  from  the  probate  court  to  the  court  or 
common  pleas,  may  be  given  by  adding  to  the  entry  appealed  from,  or 
making  a  separate  entry,  as  follows  : 


384  JOURNAL    ENTRIES.  [SEC.  6408- 

777.  (Sec.  6408.)     Notice   of  appeal  from  probate  to   common 
pleas  court. 

I^ow  comes  the ,  and  gives  notice  of  his  intention  to 

appeal  this  case  to  the  court  of  common  pleas. 

And  in  'proper  cases  add ;] — 

And  the  court  fix  the  appeal  bond  at  ^ . 


778.  (Sec.  6408.)     Bond,  for  appeal,  filed  and  approved. 
[Title.] 

^ow  comes  the  herein,  and  gives  his  written  under- 
taking, as  provided  by  Jaw,  tor  the  appeal  of  this  case  to  the 

court  of  common  pleas,  in  the  sum  of  $ ,  with  W.  P.  and 

C.  E.  as  sureties,  which  undertaking  is  hereby  approved  by 
the  court. 

Sec.  6410.  For  a  general  form  to  be  used  iu  entering  judgments  in 
the  common  pleas,  on  appeal  from  the  probate  court,  the  following  may 
be  used. 

779.  (Sec.  6410.)     Judgment  in  common  pleas,  on  appeal  from 

jyrohate  court. 

[Title.] 

This  cause  came  on  this  day  to  be  heard,  and  was  submit- 
ted to  the  court  on  the  transcript  from  th*^  probate  court  of 
this  county,  the  original  papers  in  the  case,  and  the  evidence; 
and,  on  consideration  thereof,  the  court  find  [inakc  finding  and 
judgment  as  if  the  case  had  begun  in  the  comnion  i^leas,  and  con- 
clude as  follows :] — 

It  is  further  ordered  that  the  clerk  of  this  court  make  out 
and  file  in  said  probate  court  a  transcript  of  the  proceed- 
ings and  judgment  herein. 

780.  (Sec.  6413.)      Order  for  administrator  to  invest  money  vend- 

ing suit,  etc. 
[Tide.] 

It  appearing  to  the  court  that  T.  H.,  the of ,  has 

in  his  hands  the  sum  of  $ ,  to  await  the  determination  of 


-6418.]  Al'I'ROPIUATION    OF    PROPERTY.  385 

case  No. ,  Superior  Court  of  Cincinnati,  wherein  W.  II. 

is  plaintiff  and  li.  S.  defendant,  and  the  further  order  of  this 

court,  it  is  herehy  ordered  that  said invest  said  sum  in 

[vame  securities],  and  hold  them  until  further  order  of  the 
court. 


CHAPTER  VITI. 

APPROPRIATION  OF  PROPERTY. 

781.  (Sec.  G418.)  Time  for  hearing  fixed. 

7S2.   (Sec.  0419.)  ( >rfler  directing  service  by  i)ublication. 

78;;.  (Sec.  G42I).)  Preliminuiy  f|uestions  determined,  and  jury  ordered. 

784.  (Sec.  6428.)  Writ  i.ssued  for  view  of  premi.ses. 

785.  (Sec.  G432.)  Entry  of  further  hearing,  and  verdict. 
78('i.  (Sec.  0432.)  Jury  impaneled,  and  verdict  rendered. 

787.  (Sec.  0432.)     New  trial  granted. 

788.  (Sec.  6432.3,)  Judgment  on  verdict. 

789.  (Sec.  6434.)     Order  tliat  corporation  make  payment  or  deposit. 

790.  (Sec.  6434.)     Judgment  against  corporation  on   its  failure  to  make 

l)ayment. 

791.  (Sec.  6438.)     Judgment  aflirmed,  on   error,   by  the  court  of  common 

])leas. 

792.  (Sec.  6438.)     Judgment  revers(>d,  on  error,  and  case  retained  for  trial 

in  common  pleas. 

793.  (Sec.  6441.)     Attorney  appointed  to  attend  proceedings  for  non-resi- 

dent, etc. 

794.  (Sec.  644t).)     Judgment  by  the  court  against  former  company's  own- 

ership of  abandoned  road-bed. 
79.J    (Sec.  644t).)     Judgment  by  the  court  in  favor  of  defendant's  owner- 
ship, etc.,  and  jury  ordered. 

796.  (Sec.  6446.)     Judgment  on  verdict  against  former  company's  owner- 

ship, etc. 

797.  (Sec.  6446.)     Judgment  on  verdict  finding  that  defendant  has  inter- 

terest,  etc.,  and  assessing  damages. 

798.  (Sec.  6449.)     .Tudgment  on  verdict  against   a  corporation  occupying 

land  before  appropriation. 

781.   (Sec.  6418.)      Time  for  hearing  fixed. 

[Title.] 

The  court  iix  the  day  of ,  18 — ,  for  the  hearing 

of  this  cause. 


386  JOURNAL    ENTRIES.  [SEC.    6419- 

782.  (Sec.  6419.)     Order  directing  service  by  imhlication. 
[Title.'] 

It  being  made  to  appear  to  the  satisfaction  of  the  court, 
upon  evidence,  that  the  residence  of  the  defendant,  J.  B., 
is  beyond  the  Sate  of  Ohio  \or,  is  unknown],  it  is  now  or- 
dered that  service  by  publication  be  made  against  the  said 
J.  B.,  in  accordance  with  the  provision  of  sec.  6419  of  the 
Revised  Statutes  of  Ohio. 

783.  (Sec.  6420.)     Preliminary  questions  determined,  and  jury 

ordered. 

[Title.] 

This  cause  coming  on  for  hearing,  and  being  submitted  to 
the  court  upon  the  evidence  produced,  the  court  find  that 
the  defendants  have  been  duly  served  with  process  and  are 
pro}>erly  before  the  court;  and  further  find  that  the  plaintiff 
is  a  corporation,  as  averred  in  the  petition  lierein,  that  it  has 
the  legal  right  to  make  the  appropriation  prayed  for  in  the 
petition,  and  that  the  same  is  necessary,  and  that  plaintifiJ"  is 
unable  to  agree  with  the  defendants  as  to  the  compensation 
to  be  paid  for  the  property  sought  to  be  appropriated  herein 
[to  all  of  which  the  defendant,  J.  II.  B  ,  excepts].  * 

It  is  therefore  ordered  that  to  assess  compensation  for  said 
property,  herein  sought  to  be  appropriated,  a  jury  be  impan- 
eled, according  to  law,  and  that  said  jury  come  on  the  

day  of ,  18 — ,  at  10  o'clock  a.  m.,  which  time  is  hereby 

fixed  for  the  impaneling  of  the  same. 

784.  (Sec.  6428.)      Writ  issued,  for  view  of  premises. 
[Title.] 

As  in  No.  786  to  *,  and  continue:] — 

And  on  motion  of a  w^rit  was  issued  to  the  sheriff' for 

a  view  by  the  jurors,  in  the  presence  of  W.  D.  and  C.  L., 
of  the  premises  souglit  to  bo  appropriated,  returnable,  ac- 
cording to  law,  Thursday,  September  15,  1882,  at  10  o'clock 
A.  M.,  to  which  time  tliis  cause  is  now  adjourned. 


-6432.]  APPROPRIATION    OF    PROPERTY.  387 

785.  (Sec.  6432.)     Entry  of  further  hearing^  and  verdict. 

[r;tic.'\ 

This  day  again  came  the  parties  hereto  and  their  attor- 
neys, and  also  the  jury  heretofore  impaneled  and  sworn, 
and  the  hearing  proceeded. 

[Conclude  as  front  *  in  Entry  No.  786]. 

786.  (Sec.  6432.)     Jury  impaneled,  and  verdict  rendered  in  ap- 

propriation. 

[Tille.] 

This  cause  came  on  this  day  to  be  heard,  and  the  parties 
and  their  attorneys  appeared,  and  also  the  following  named 
jurors,  heretofore  summoned  herein,  viz.,  A.  "W.  [?(fl?r/c],  and 
the  panel  not  being  complete,  it  was  ordered  that  the  sher- 
iff fill  the  vacancies  with  talesmen  ;^  and  therefore  S.  W.  and 
R.  T.  were  called,  and  the  panel  was  complete.  And  each 
juror  being  interrogated  as  to  whether  he  was  in  any  way 
interested,  either  as  owner  or  agent,  or  otherwise,  in  the  prop- 
erty sought  to  be  condemned  and  appropriated,'  and  each 
answering  in  the  negative,  and  neither  party  excepting 
thereto,  the  said  jurors  were  duly  sworn.  * 

And  thereui)on,  after  hearing  the  testimony  of  witnesses, 
argument  of  counsel,  and  cliarge  of  the  court,  the  jury,  after 
due  doliberation,  returned  their  verdict  in  writing  to  the 
court  as  follows,  to  wit  : 

'•'•  We,  the  jury,  in  tliis  proceeding,  assess  the  compensa- 
tion  to  be   paid   l)y  the  plaintiff,  the Company,  to   the 

owner  or  owners  of  the  lot  of  land  described  in  the  petition 
as  lot  "A,'*  by  reason  of  the  appropriation  of  the  same  to  the 
use  of  the  said  plaintiff,  irrespective  of  any  improvement  pro- 
posed Ity  said  corporation,  at dollars. 

A.  G.  M.  T.  G.  II. 

etc.  etc. 

A.  C,  Foreman."   . 

787.  (Sec.  6432.)     New  trial  granted. 
[Title.] 

On  motion  of  the ,  and  for  good  cause  shown,  a  new 

trial  is  granted  in  this  case. 

1  By  sec.  6425. 


388  JOURNAL    ENTRIES.  [SEC.  6432,3- 

788.  (Sees.  6432,3.)     Jugdment  on  verdict. 
[Title.-] 

Tlie  jury  herein  having  assessed  the  amount  of  compensa- 
tion in  this  case  to  be  paid  to  the  owner  or  owners  of  the 
premises  described  in  the  petition  as  lot  "A,"  by  reason  of  the 

appropriation  of  the  same  to  the  use  of  the  plaintiff  at 

dollars,  *  it  is  now  therefore  adjudged  that  said  verdict  be 
confirmed,  and  that  said  plaintiff,  upon  payment  of  the 
amount  of  said  verdict,  and  of  all  costs  due  from  them,' 
shall  be  entitled  to  take  possession  of  and  hold  the  prem- 
ises aforesaid,  with  all  rights  and  interests  thereto  belong- 
ing and  appertaining,  for  the  uses  and  purposes  for  which 
the  appropriation  was  made ;  and  all  necessary  process  to 
put  said  plaintiff  in  possession  of  the  same  is  thereupon 
awarded. 

789.  (Sec.  64-34.)     Order  that  corporatioii  make  payment  or  de- 

2)osif. 

[Title.] 

On  motion  of  the  defendant,  E.  F.,  and  it  appearing  that 
the  plaintiff  herein  has  failed  to  make  payment  or  deposit 
of  the  amount  of  the  verdict  rendered  herein,  it  is  now  or- 
dered that  the  said  plaintiff  pay  or  deposit  such  sum,  to- 
gether with  costs,  as  required  by  law,  within  thirty  days  from 
this  date,  or  then  be  held  and  considered  to  have  aban- 
doned the  said  property  so  appropriated,  and  all  claims 
thereon,  under  this  proceeding. 

790.  (Sec.  6434.)     Judgment  of/ainst  corporation  on  its  failure 

to  make  -payment. 

[Title.] 

The  plaintiff  herein  having  failed  to  make  payment  of 
the  amount  of  the  verdict  rendered  in  this  case,  in  favor  of 
the  defendant,  E.  F.,  it  is  now  ordered  that  said  plaintiff  be 
considered  to  have  abandoned  the  property  so  appropriated, 
and  all  claims  thereon,  under  this  proceeding.  And  the 
court  now  on  evidence  offered  find  that  the  costs   and  ex- 

1  As  to  costs,  see  seo.  6451,  and  in  case  a  deposit  for  the  property  has  been 
made  and  not  accepted,  see  sec.  G452. 


-6446.]  APPROPRIATIOX  OF  PROPERTY.  389 

penses  incurred  by  tlie  suid  E.  V.,  including  time  spent  and 

attorney  fees,  in  this  beluilf,  amount  to dollars. 

It  is  tlierefore  considered  and  adjudged  that  the  said  E.  F. 

recover  from  the  said  plaintiff  the  said   sum  of  $ ,  and 

execution  is  awarded  therefor. 

791.  (Sec.  6438.)     Jiu/gment  affirmed,  on  error,  by  the  court  of 

common  pleas. 
[Title.] 
Use  form  of  Entry  No.  821  or  822,  jyaye  402. 

792.  (Sec.  6438.)    Judgment  reversed,  on  error,  and  case  retained 

for  trial  in  the  court  of  common  pleas. 
[Title.] 
Use  form  of  Entn/  No.  826,  par/e  404. 

Sees.  6438-40.  On  trial  in  the  corainou  pleas,  the  forms  of  entries 
will  be  substantially  the  sumo  as  in  the  probate  court. 

793.  (Sec.  6441.)     Attorney  appointed  to  attend  proceedings  for 

non-resident,  etc. 

[Title.'] 

E.  F.,  one  of  the  parties  in  interest  herein,  not  having  ap- 
peared in  these  proceedings  by  agent  or  attorney  [or  other 
cause  may  be  stated'],  the  court  hereby  appoints  II.  A.  attor- 
nev  to  attend  upon  these  proceedings  in  behalf  of  the  said 

e.'f. 

Sec.  6443.  Order  for  investment  may  be  similar  to  Entry  No.  780. 

Sec.  6445.  The  action  here  provided  for  may  by  sec.  6447,  as 
amended  79  O.  L.  65,  be  prosecuted  in  the  probate  court,  court  of 
common  pleas  or  superior  court.  And  by  sec.  6446  the  quc^stion  of 
the  former  company's  ownership  of  the  abandoned  road-bed.  may 
be  determined  b}"  the  court  on  an  issue  of  law,  or  by  the  jury  on  an 
issue  of  fact. 

794.  (Sec.  6446.)     Judgment  by  the  court  against  former  com- 

pany's oionership  of  abandoned  road-bed. 
[Title.]    . 

As  in  entry  No.  783  to  *,  and  coiitinue:] — 
The  court  further  find  that  the  defendant,  the  com- 


390  JOURNAL   ENTRIES.  [SEC.  6446- 

pany,  is  not  entitled  to  the  ownership  of,  and  has  no  interest 
in,  the  road-bed  sought  to  be  condemned  in  this  case.  It  is 
therefore  adjudged  by  the  court  that  the  claim  of  said  com- 
pany to  said  road-bed  be  forever  quieted  as  against  this 
plaintiff;  and  that  they  pay  the  costs  of  this  proceeding. 
[Conclude,  as  to  other  defendants,  as  from  *  in  Entry  No.  783.] 

795.  (Sec.  6446.)     Judgment  by  the  court  m  favor  of  defendant^ s 

ownership  of  abandoned  road-bed,  andjaiy 
ordered. 
{Title:] 

Entry  may  be  made  as  in  No.  783  to  *,  and  co7iti7iue :] — The 
court  further  find  that  the  defendant,  the  W.  W.  V.  R.  R.  Co., 
has  an  interest  in  the  road-bed  sought  to  be  condemned  in 
these  proceedings.     [Conclude  as  from  *  in  Entry  No.  783.] 

For  entry  on  return  of  verdict,  modify  Entry  No.  786. 
For  judgment  on  the  verdict,  modify  Entry  No.  788. 

Or,  by  sec.  6446,  the  question  of  the  ownership  of  such  road-bed, 
if  a  question  of  fact,  may  be  determined  by  a  jury.  Make  the  pre- 
liminary finding  as  in  Entry  No.  783.  For  entry  on  verdict  returned, 
modify  No.  786.     Judgment  on  the  verdict  may  be  as  follows  : 

796.  (Sec.  6446.)     Judyment  on  verdict  ayainst  former  compa- 

nies ownership)  of  abandoned,  road-bed. 

[Title:] 

The  jury  herein  having  at  a  former  day  of  this  court  found 

that  the  defendant,  the Company,  has  no  interest  in  the 

road-bed  sought  to  be  condemned  by  the  plaintiff. 

It  is  therefore  considered  by  the  court  that  the  claim  of 
said  defendant  to  said  road-bed  be  forever  quieted  as  against 
this  plaintiff,  and  that  said  plaintiff  recover  from  said  de- 
fendants its  costs  herein  expended.  » 

But  if  the  jury  find  that  the  company  claiming  the  road-bed  has  an 
iuterest  in  it,  and  assess  the  compensation  due  tliem  on  account  of 
its  appropriation  by  the  plaintifi",  judgment  on  this  verdict  may  be  as 
follows : 


-6458.]  APPROPRIATION  OF  PROPERTY.  391 

797.  (Sec.  6446.)     Judgment  on  verdict  finding  that  defendant 

has  interest  in  road-bed,  etc.,  and  assessing 
compensation. 
[Title.'] 

The  jury  herein  having  found  that  the  company  has  an  in- 
terest in  the  road-bed  sought  to  be  condemned  in  these  pro- 
ceedings, and  having  also  assessed  the  amount  of  compensa- 
tion to  be  paid  to  the  said Company  at  $ ,  by  reason 

of  the  appropriation  of  tlie  same  to  the  use  of  tlie  plaintitf 
[conclude  as  fro)ii  *  in  No.  788]. 

Sec.  6449.  The  entry  of  verdict  may  be  in  the  same  form  as  Entry 
No.  786.     The  judgment  on  the  verdict  as  follows: 

798.  (Sec.  6449  "^     Judgment  on  verdict  against  a  corporation  oc- 

cupyivq  land  before  appropriation. 

[Title.'] 

As  in  Enlrg  No.  788  to  *,  and  continue :] — 

It  is  therefore  considered  by  the  court  that   the   plaiutitf 

herein  recover  from  the  said Company  the  said  sum  of 

§ ,  and  his  costs  herein  expended,  and  execution  is  award(>d 

therefor. 

Sec.  6450.  The  injunction  proceedings  and  entries  will  be  the  same 
as  in  other  cases. 


392  JOURNAL   ENTRIES. 


MISCELLANEOUS. 

Adoption  ok  infants. 
Insane  person. 
Justices  of  the  peace. 
Partneksiiips. 


ADOPTION  OF  INFANTS. 

800.  Next  friend  appointed. 

801.  (Sees.  3137-9.)  Order  for  adoption. 

It  is  the  custom  with  the  Probate  Court  of  Hamilton  County  to  ap- 
point a  next  friend  for  the  infant,  when  it  has  no  parent  or  guardian, 
who,  on  being  satisfied  that  the  proposed  adoption  will  be  for  the  bene- 
fit of  the  child,  shall  sign  the  consent  thereto. 

800.  Next  friend  ajrpointed. 
[Title.] 

It  appearing  to  the  court  that  the  infant,  L.  F.,  whom  D, 
W.  and  A.  W.  propose  to  adopt,  has  neither  father,  mother, 
nor  guardian  [or,  has  been  abandoned  by  its  father  and 
mother],  L.  W.  is  hereby  appointed  next  friend  for  said  in- 
fant to  act  instead  of  a  parent  in  the  matter  of  said  adop- 
tion. 

801.  (Sees.  3137-9.)     Order  for  adoption. 
[Title.] 

It  appearing  to  the  court  from  the  petition  of  D.  W.  and 
A.  W.,  his  wife,  inhabitants  of  the  State  of  Ohio,  that  they 
desire  to  adopt  L.  F.,  a  minor  child,  not  theirs  by  birth,  and 
that  the  name  of  said  child  may  he  changed  to  L.  W.,  said 
child  being  four  years  of  age  on  the  31st  of  December,  1881 ; 
and  said  petitioners  having  produced  the  written  consent  of 

to  such  adoption,  and  the  court  having  examined  the 

said  A.  W.,  wife  of  said  I).  AV.,  separate  and  apart  from  her  said 
husband,  and  being  satisfied  that  she  consents  to  such  adop- 


INSANE    PERSON — JUSTICES    OF    THE    PEACE.  393 

tion  of  her  own  free  will  and  accord,  and  desires  the  same; 
and  being  satisfied  that  said  petitioners  are  of  sufficient 
ability  to  bring  up  and  educate  such  child  properly,  and  of 
the  fitness  and  propriety  of  such  adoption,  it  is  hereby  or- 
dered and  declared  that  from  this  date  said  child,  to  all  legal 
intents  and  purposes,  bo  the  child  of  the  petitioners,  and  that 
the  name  of  such  child  be  chano-ed  as  above  named. 


INSANE  PERSON. 

802.  (Sees.  704  and  740.)     Insanit'j  found. 

[Title.'] 

This  cause  coming  on  this  day  to  be  heard  upon  the  affi- 
davit of  ]\[.  S.  and  the  testimony  of  witnesses,  the  court  be- 
ing fully  advised  in  the  premises,  find  the  said  S.  C.  to  be  in- 
sane, and  order  her  committed  to asylum. 


CHAPTER  IX. 

JUSTICES  OF  THE  PEACE. 

803.   (Sec.  568.)     Order  increasing  number,  in  township. 

80-t.  (Sec.  572.)     Citation,  and  freeholders  appointed  in  case  of  contes 

805.   (Sec.  573.)     .Judgment  on  decision  of  freehokiers. 

803.  (Sec.  568.)     Order  increasing  number  of  justices,  in  town- 
ship. 
In  re  increasing  number^ 

of  justices  in   V 

township.  j 

It  appearing  to  the  court,  by  the  petition  of  M.  B.  L.  and 

other  residents  of township,  in  this  county,  that  there  is 

not  a  sufiicient  number  of  justices  of  the  peace  in  said  town- 
ship, and  that  public  notice  has  been  given,  according  to 
law,  of  this  application,  the  court  now,  upon  full  considera- 
tion of  the  matter,  and  it  seeming  just  and  proper,  it  is  now 
ordered  that  there  be  one  more  justice  of  the  peace  added 
to  said  township. 

A  similar  entry  may  be  made  for  decreasing  the  number  of  justices. 


394  JOURNAL    ENTRIES. 

804.  (Sec.  572.)     Citation,  and  freeholders  appointed,  in  case 

oj  contest. 

ITitle:] 

This  day  came  E.  D.,  a  candidate  at  the  last  election  for 

justice  of  the  peace  in township, county,  Ohio,  and 

gave  notice,  according  to  law,  of  his  desire  to  contest  the 
election  of  E.  S.,  declared  elected  to  said  office.  And  there- 
upon a  citation  is  issued  for  the  said  E.  S.  to  appear  on  tl;o 

day  of ,  18 —  \i)ot  wore  than  fifteen  dans  from  the  dan 

of  election'],  at  the  office  of  the  probate  judge  in  this  county, 
for  the  hearing  of  the  matter. 

And  the  court  appoint  W.  R.  W.,  M.  H.,  and  L.  E.,  three 
respectable  freeholders  of  the   county,  not   residents  in  the 

said  township,  to  try  sucli  contest,  on  the  day  above 

named ;  and  summons  is  directed,  returnable  accordingly. 

805.  (Sec.  575.)     Judgment  on  decision  of  freeholders. 
[Title.'] 

This  day  this  cause  came  on  for  hearing,  and  was  fully 
heard  on  the  testimony  of  witnesses,  and  was  argued  by 
counsel ;  and,  after  due  consideration,  the  freeholders  here- 
tofore appointed  by  the  court  signed  and  sealed  their  de- 
cision in  the  matter,  and  the  same  was  duly  attested  by  the 
court;  which  decision  is  as  follows,  to  wit  [copy  decision]. 

It  is  therefore   adjudged  by  the  court  that pay  the 

costs  of  this  proceeding  [and,  in  case  the  contestor  is  to  pay 
costs,  add']  :  and  execution  is  awarded.^ 


PARTNERSHIPS. 

Duties  and  rights  of  surviving  partner — 

800.  (Sec.  3167.)     Appraisers  of  assets  appointed  on  application  of  sur- 
viving partner. 

807.  (Sec.  316S.)     Same — on  application  of  executor  or  administrator. 

808.  (Sec.  3107.)     Inventory  and  appraisement  returned  and  filed. 

809.  (Sec.  3169.)     Assets  of  firm  taken  by  surviving  partner. 

1  By  sec.  578. 


partnerships.  395 

Duties  and  riguts  of  surviving  partner — 

806.  (Sec.  3167.)     Aj)praisers  of  partnership  assets  appointed  on 

application  of  surviving  partner. 

[Title.] 

Oil  application  of  L.  F.,  surviving  [lartner  of  the  firm  of 
M.  and  F.,  of  which  firm  L.  F.  was  a  member,  the  court  ap- 
point 'I\  J\.,  S.  B.,  and  M.  I),  as  appraisers,  to  make,  under 
oatli,  an  inventory  and  appraisement  of  the  assets  and  lia- 
bilities of  the  late  partnership  aforesaid,  and  return  the 
same  to  this  court. 

807.  (Sec.  3168.)     Same — on  application  of  executor  or  admin- 

istrator. 

[Title.] 

L.  F.,  the  surviviiii>-  partner  of  the  decedent  herein,  hav- 
ing neglected  [or,  refused]  to  liavc  an  inventory  and  appraise- 
ment made  of  the  partnership  assets,  the  court  now,  on  the 
application  of  E.  T.,  the  executor  [or,  administrator]  of  C. 
!M.,  appoint  T.  K.,  S.  B.,  and  M.  D.  as  appraisers,  to  make  a 
complete  inventory  and  appraisement  of  the  assets  and 
liabilities  of  the  late  firm  of  M.  &  F.,  and  return  the  same  to 
this  court. 

808.  (Sec.  3167.)     Inventory   and   appraisement   returned   and 

Med. 
[Title.] 

This  (lay  came  L.  F.,  the  surviving  partner  of  the  firm  of 
M.  &  F.  [or,  E.  T.,  the  executor,  or,  administrator  of  C.  M., 
deceased],  and  returned  his  inventory  and  appraisement  of 
the  assets  and  liabilities  of  the  late  firm  of  M.  &  F.,  and  the 
court,  on  consideration  thereof,  find  the  same  in  all  respects 
correct  and  conformable  to  law,  and  hereby  approve  and  con- 
firm the  same,  and  direct  that  it  be  filed. 

809.  (Sec.  3169.)     Assets  of  firm  taken  by  surviving  partner. 
[Title.] 

The  appraisers,  heretofore  appointed  by  the  court,  having 

returned  their  inventory  and  appraisement  of  the  assets  and 

liabilities   of  the  late  firm   of  M.  &  F.,  now  comes  the  said 

L.  F.,  the  surviving  partner,  and  elects  to  take  the  assets  at 
26 


396  JOURNAL    ENTRIES. 

their  appraised  value,  viz., dollars,  after  first  deducting- 

the  debts  and  liabilities,  in  the  sum  of  $ .  And  it  ap- 
pearing to  the  court  that  the  executor  \_07%  administrator]  of 
the  said  C.  M.,  deceased,  consents  thereto,  and  that  said  L. 
F.  tenders  his  promissory  note  therefor,  according  to  the  stat- 
ute, with  J.  R.  and  L.  E.  as  sureties  [or  name  any  other  secur- 
ity], and  also  tenders  his  bond  for  the  payment  of  tho  debts 
and  liabilities  of  said  firm,  with  R.  D,  and  R.  C.  as  sureties, 
both  of  which  securities  arc  approved  by  the  court,  the  court 
hereby  approve  of  the  taking  of  said  assets,  and  authorize 
the  immediate  transfer  of  the  personal  property  to  the  said 
L.  F.,  and  order  that  upon  said  notes  and  liabilities  being 
paid  in  full  the  executor  [or,  administrator]  of  the  said  C.  M. 
execute  and  deliver  to  him  a  deed  of  the  interest  of  the  said 
C.  M.  in  the  real  estate  beJoMe;!?^  to  said  firm. 


JURISDICTION    AND     PROCEDURE    IN    ERROR. 


397 


TITLE  IV. 

ERROR,   MANDAMUS,  AXD    QUO   WARRANTO. 

ClIAF.         1.    JlKlSUlCTlON    AND    PROCEDURE    IN    ERROR. 

II.  Mandamus. 
III.  Quo  Warranto. 


CPIAPTER  I. 


810. 
811. 
812. 
SI, 3. 
814. 

815. 
810. 

817. 
818. 
819. 
820. 
821. 
822. 


JURISDICTION  AND  PROCEDURE  IN  ERROR. 

(Sec.  6716.)     Order  for  substitution  of  copies,  etc. 
(Sec.  6718,  etc.)     Order  fixing  amount  of  bond. 


(Sec.  6719. 
(Sec.  6722. 
(Sec.  6725. 

(Sec.  6726. 
(Sec.  6726. 
Reversal  and  decree  for  sale. 


(Sec.  6726. 
(Sec.  6726. 
(Sec.  6727. 
(Sec.  6730. 
(Sec.  6730. 


Order  approving  bond — when  done  by  court. 

Leave  to  proceed  in  e.xecution,  notwithstanding  bond. 

Order  staying  execution  of  judgment  below,  in  certain. 

cases. 
Reversal,  and  judgment  in  reviewing  court. 
Reversal  for  error  of  court  below  in  refusing  a  new  trial. 


Reversal,  and  cause  remanded  for  judgment. 
Reversal,  and  cause  remanded  for  further  proceedings. 
Reversal  in  part,  and  affirmance  in  part. 
Affirmance,  with  penalty. 
Affirmance,  without  penalty. 


Diminution  of  record — 

823.  (Sec.  6731.)     Order  for  complete  transcript. 

Error  in  judgment  op  a  justice — 

824.  (Sec.  6732.)     Judgment  affirmed,  and  certified  back. 

825.  (Sec.  6732.)     Judgment  affirmed,  and  execution    in  common  pleas 

awarded. 

826.  (Sec.  6733.)    Judgment  reversed,  and  case  retained. 

827.  (Sec.  6733.)     Judgment  reversed  for  want  of  jurisdistion  of  justice. 


398  JOURNAL    ENTRIES.  [SEC.  6707- 

Old  chax(;ery  cases — 

828.  (Sec.  6738,9.)  Order,  in  vacation,  for  stay  of  proceedings,  etc. 

Mandates,  and  the  entering  thereof  in  the  court  BEi.em' — 

829.  Judgment  in  obedience  to  a  mandate,  etc. 

810.  (Sec.  6716.)     Order  for  substitution  of  copies,  etc. 
[Title.'] 

It  appearing  that  the  original  papers  and  pleadings  in  this 
case,  tiled  in  this  court,  are  needed  in  the  court  below,  for 
purpose  of  record,  it  is  ordered  that  copies  thereof  be  made 
by  the  clerk,  and  filed  in  place  of  said  originals,  and  that  the 
originals  be  returned  to  the  court  below. 

811.  (Sees.  6718;  2,  3,  4,  and  sec.  6724.)      Order  fixing  amount 

of  bond. 

[Title.-] 

It  is  ordered  that  the  undertaking  for  the  stay  of  execution 

in  this  case  be  given,  according  to  law,  in  the  sum  of 

dollars. 

812.  (Sec.  6719.)     Order   approving   bond — when    done   by   the 

court. 

[Title.] 

Now  comes  the ,  and  presents  his  undertaking  for  stay 

of  execution  in  this  case,  with  F.  G.  and  II.  I.  as  sureties  ; 
which  said  undertaking  and  sureties  are  hereby  approved  by 
the  court. 

813.  (Sec.  6722.)     Leare  to  proceed  in  execution,  nottoithstanding 

bond. 

[Tdle.] 

Now  comes  the  said  A.  B.,  and  makes  application  to  the 
court  for  leave  to  enforce  his  judgment  heretofore  obtained 
herein,  notwithstanding  the  undertaking  of  the  said  defend- 
ant, and  presents  his  bond  therefor,  conditioned  according  to 

law,  in  the  simi  of  $ ,  with  E.  F.  and  J.  D.  as  sureties,  to 

the  approval  of  the  court ;  and  thereupon  the  said  A.  B.  is 
allowed  to  enforce  his  said  judgment. 


-6726.]  JURISDICTION    AND    PROCEDURE    IN    ERROR.  399 

H14.  (Sec.  6725.)  Order  staying  execution  of  judgment  below,  in 
certain  cases. 

[7ille.] 

On  application  of  the  plaintiff  in  error  herein,  it  is  hereby 
ordered  that  execution  of  the  judgment  [or,  final  order]  of 
the  [name  court  hclouf\,  for  the  reversal  of  which  the  petition 
in  this  case  was  filed,  be  stayed  until  the  final  hearing  of  the 
cause  in  this  court  [or  less  time'\,  u[»on  plaintiflT  giving  bond 

to '  in  the  sum  of dollars,  to  the  effect  that  [name 

conditions],  with  sureties  to  the  approval  of  this  court. 

[Add  any  other  conditions  imposed  by  the  court.'] 

815.  (Sec.  6726.)     Recersal,  and  judgment  in  revieioing  court. 

[Title.] 

This  cause  came  on  for  hearing  upon  the  petition  in  error, 
the  transcript,  and  the  original  papers  and  pleadings  from  the 
[name  court'\,  and  was  argued  by  counsel ;  and,  on  considera- 
tion thereof,  the  court  find  that  there  is  error  ajiparent  upon 
the  record  in  the  proceedings  of  said  court,  to  the  prejudice 
of  the  plaintiff"  in  error.-  * 

It  is  therefore  considered  by  this  court  that  the  judgment 
rendered  by  said  court  below  be  reversed  and  held  for 
naught. 

And  the  court. further  proceeding  to  render  such  judgment 
as  the  said court  ought  to  have  rendered,  find,^  etc. 

It  is  therefore  considered,^  etc. 

It  is  further  ordered  that  a  special  mandate  be  sent  to  the 
[name  court  below']  for  the  execution  of  this  judgment. 

'  Name  the  adverse  party. 

''To  justify  the  reversal,  the  record  must  not  only  show  error,  but  that  it  was 
\p  the  prejudice  of  the  party  seeking  to  take  advantage  of  it.  Ohio  Life  Ins. 
and  Trust  Co.,  10  Ohio  St.  557;  Banning  r.  Banning,  12  Ohio  St.  437  ;  Bear  v. 
Knowles,  36  Ohio  St.  43. 

'The  finding  and  judgment  in  the  reviewing  court  will  be  in  the  same  forms 
as  an  original  finding  in  the  common  pleas,  including  costs,  by  sec.  G727. 

As  to  rendering  the  judgment  which  the  court  below  ought  to  have  rendered, 
see  Columbus,  etc.,  R.  Co.  v.  Simpson,  5  Ohio  St.  251 ;  Etna  Ins.  Co.  r.  Church, 
21  Ohio  St.  492;  Emery's  Sons  v.  Bank,  25  Ohio  St.  360;  Stivers  v.  Borden,  20 
Ohio  St.  232. 


400  JOURNAL  ENTRIES.  [SEC.  6726- 

816.  (Sec.  6726,  82  O.  L.  38.)     Reversal  for  error  of  court  below 

in  refusing  a  new  trial} 

ITitle.'l 

As  in  last  to  *,  and  continued] — in  this,  to  wit,  that  the  said 
\imme  courf]  refused  to  the  plaintiff  here  a  new  trial  on  his 
motion  therefor. 

It  is  therefore  considered  by  this  court  that  the  judgment 
rendered  by  said  court  ')elow  be  reversed  and  held  for  naught, 
and  that  [the  venlict   rendered   by  the  court  below   be   set 

aside,  and  that]  a  new  trial  be  granted  to  the  in  said 

court;  and  that  the  plaintiff  in  error  recovei-  his  costs  heroin 
expended  from   tlie  defendant  in   error  ;   and  that  a  special 

mandate  be  sent  to  the  court  foi-  the  execution  of  this 

judgment. 

817.  (Sec.  6726,  82  O.  L.  38.)     Reversal,  and  decree  for  sale. 
ITitle.'] 

As  in  decree  No.  815  to  *,  and  continue  i] — 

It  is  therefore  considered  by  this  court  that  the  judgment 
rendered  by  said  court  below  be  reversed  and  held  for 
naught. 

And  the  court  further  proceeding  to  render  such  judgment 
as  the  said court  ought  to  have  rendered,  find,  etc. 

[Let  the  decree  for  sale  be  in  the  usual  form,  except  that  instead 
of  the  order  for  the  sheriff  to  report  his  proceedings  to  this  court, 
order : — that  he  report  his  proceedings  to  the  Court  of 
Common  Pleas  of County  for  further  order.]  - 

It  is  further  ordered  that  a  special  mandate  be  sent  to  said 
common  pleas  court  for  the  execution  of  this  judgment  and 
decree.'^ 

^  Where  the  only  question  before  tlie  court  of  error  is  as  to  the  error  of  the 
court  below  in  overruling  a  motion  for  a  new  trial,  and  when  the  party  was  not 
entitled  to  judgment  on  the  pleadings,  and  there  was  no  agreed  statement  of 
facts,  or  special  finding  of  facts  by  the  court  below,  the  only  judgment  to  be 
rendered  after  reversal  is  to  grant  a  new  trial,  as  moved  for  in  the  court  below. 
See  Emery's  Sons  v.  Irving  National  Bank,  '25  Ohio  St.  360;  Stivers  v.  Corden, 
20  Ohio  St.  232. 

*It  was  held,  under  the  former  practice,  in  the  case  of  Craig  v.  Fox,  16  Ohio, 


—6729.]  JURISDICTION  AND  PROCEDURE  IN  ERROR.  401 

818.  (Sec.  6726,  82  O.  L.  38.)     Reversal,  and  cause  remanded 

for  judgment. 

[Title.] 

As  in  No.  81  o  to  *.  and  continue  •]  — 

It  is  therefore  considered  by  tliis  court  that  the  judgment 
rendered  by  said  court  bebiw  be  reversed  and  held  for 
iiuiiii-lit.  And  that  the  plaintitf  in  error  recover  from  the  de- 
fondant  in  error  his  costs  lierein  expended,  taxed  at  S . 

And  the  coiii't  fnrtlier  proceeding  to  consider  the  premises, 
find,'  etc.;  and  order  that  the  cause  be  remanded  to  tiie  \_name 
conrtl  for  judgment  in  accordance  with  the  above  finding,^  and 
that  a  special  mandate  thcref(»r  be  sent  to  said  court. 

819.  (Sec.  .0720,  82  O.   L.  38.)     Rrrersal,  and  cause  remanded 

for  farther  proceedings  and  judgment. 

[Title.] 

As  in  Xo.  815  to  *,  and  continue:] — 

It  is  therefore  considered  by  this  court  that  the  judgment 
rendei'cd  by  said  court  below  be  reversed  and  held  for  naught, 
and  that  the  plaintitFin  error  recover  from  the  defendant  in 
error  bis  costs  lierein  expended,  taxed  at  § . 

It  is  further  ordered  that  this  cause  be  remanded  to  the 
[_niniie  court]  for  further  proceedings  [or,  a  new  trial],  and  for 
judgment ;'  and  that  a  s})ecial  mandate  therefor  be  sent  to  said 
court. 

820.  (Sec.  0727.)     Reversal  in  -part,  an<!  affirmance  in  -part. 
[Tide.] 

As  in  entry  JSo.  815  to  *.  and  continue:] — in  so  much  of 
the  said  judgment  as  [here  state  the  part  to  be  reversed],  and 
as  to  tlie  same  the  said  judgment  is  hereby  reversed.     And 


;')!;:>,  that  it  was  proper  for  the  order  of  sale  to  issue  out  of  the  i-ommon  pleas 
<ouit.  By  sec.  5373  an  order  of  sule  is  an  execution  and  it  would  seem  that  the 
court  of  error  must  remand  the  case,  for  the  order  of  sale. 

•As  to  when  the  reviewing  court  can  find  for  either  party,  instead  of  sending 
the  case  back  to  the  t;ourt  below  for  a  new  trial,  see  the  cases  under  note  3,  p. 
399. 

-For  judgment  in  the  court  below,  in  accordance  with  this  order,  see  entry 
No.  829,  page  4U5. 

'See  note  1,  to  previous  entry. 


402  JOURNAL    ENTRIES.  [SEC.    G730- 

the  court  finding  no  error  in  the  residue  of  said  proceedings 
and  judgment,  do  therefore  afiirm  the  same.  [Conclude  as  in 
one  of  the  above  entries,  either  to  enter  final  judgment,  or  remand 
for  further  proceedings.  Costs  must  be  equally  divided  between 
the  paiiies.'] 

821.  (Sec.  6T30,  82  O.  L.  38.)     Affirmance,  wilh  penalty. 
[Tifle.'] 

This  cause  came  on  for  hearing  upon  the  petition  in  error^ 
the  transcript,  and  the  original  papers  and  pleadings  from 

the  Court  of  Common  Pleas  of County,  and  was  argued 

by  counsel ;  on  consideration  whereof,  the  court  find  there  is 
no  error  apparent  on  the  record  in  said  proceedings  and  judg- 
ment. 

It  is  therefore  considered  by  the  court  that  the  judgment 
aforesaid  be,  and  the  same  hereby  is,  affirmed ;  and  that  the 
defendant  in  error  recover  from  the  plaintiff  in  error  his  costs 
herein  expended,  iiickiding  a  counsel  fee  to  the  defendant  of 

$ ,^  taxed  at  $ ,  *  and  also  the  sum  of dollars, 

being  five  per  cent  penalty  on  the  amount  due  to  him  on  the 
judgment  aforesaid. 

It  is  further  ordered  that  a  special  mandate  be  sent  to  the 

Common  Pleas  Court  of County,  for  execution  upon  this 

judgment. 

822.  (Sec.  6730,  82  O.  L.  38.)     Affirmance,  without  penalty. 
[Title.] 

As  in  last  to  *,  and  continue:'] — 

And  the  court  being  ot  opinion  that  there  was  reasonable 
ground  for  proceedings  in  error,  allow  no  penalty. 

It  is  further  ordered  that  a  special  mandate  be  sent  to  the 

Common  Pleas  Court  of County,  for  execution  upon  this 

judgment. 

Diminution  of  record — 

Upon  petition  in  error  the  court  may  order  the  court  of  common 
pleas  to  send  up  a  perfect  transcript  of  its  record;  but  it  has  no 
power,  in  audi  a  ease,  to  order  an  amendment  of  the  record  itself.* 

^By  sec.  6712,  as  amended  82  ().  L.  37 

'Wood  V.  Newkirk-,  1')  Ohio  St.  205.     See  al.so.  Tanner  v.  Rrown,  2  A.  L.  617- 


-6732.]  JURISDICTION    AND    PROCEDIRE    IX    ERROR.  403 

The  way  to  ()l)viiite  an  objection  that  the  "record  of  the  justice' 
sent  up  on  appeal  is  "  defective  in  substance  and  form,"  is  by  suggesting 
a  diminution  of  the  record,  and  getting  an  order  requiring  the  magis- 
trate to  send  up  a  perfect  record  of  his  proceedings.^ 

823.  (Sec.  G731.)      Order  for  cojnplefc  fravscript. 

Oil  suggestion  of  tlie liereiii  tliat  tVie  transcript  of  the 

record  of  tlie court  of \_or,  of  the  proceedings  of  the 

justice],  sent  up  to  this  court   in  this  case,  is  imperfect  and 

defective,  it  is,  on  motion  of  the  said ,  ordered  that  the 

clerk  of  tlie  said (;ourt  of [(>r,  the  said  IT.  M.,  justice 

of  the  peace],  do  forthwith,  upon  the  service  of  this  order,  cer« 
tify  up  to  tliis  court  a  complete  and  perfect  transcript  of  the 
record  and  proceedings  aforesaid. 

Error  in  judgment  of  a  justice — 

824.  (Sec.  6732.)     Jadgment  affirmed,  and  certified  back. 
[Title.'] 

This  cause  came  on  for  hearing  upon  the  petition  in  error 
and  tlie  transcript  of  the  proceedings  and  judgment  of  E.  P., 
a  justice  of  the  peace  tor  this  said  county;  on  consideration 
whereof,  the  court  find  *  there  is  no  error  in  said  })roceodings 
and  judgment,  and  the  said  judgment  is  therefore  affirmed 
at  the  cost  of  the  plaintiff  in  erroi',  taxed  at  ^ .  And  ex- 
ecution is  awarded  therefor. 

It  is  further  ordered  that  the  clerk  of  this  court  certify  this 
decision  in  the  ])remises  to  the  said  justice,  that  the  judg- 
ment affirmed  may  he  enforced,  as  if  tliese  proceedings  iu 
error  had  not  been  taken. 

825.  (Sec.  6732.)     Judgmerd  of  justirr  (ffinned,  and  execution 

in  common  picas  airarded. 
[Tdle.-] 

As  in  hist  to  *,  and,  continur:] — tliero  is  no  error  in  said 
proceeding  and  judgment,  and  tlie  said  judgment  is   there- 

'■     »  Reedy  V.  Gift,  2  Kan.  392. 


404  JOURNAL    ENTRIES.  [SEC.   6732- 

fore  affirmed  at  the  cost  of  the  phxintiff  in  error,  taxed  at 


It  is  further  ordered  that  the  said  judgment  he  carried  into 
effect  in  the  same  manner  as  if  rendered  in  this  court,  and 
execution  is  awarded  therefor,  as  well  as  for  costs  herein. 

826.  (Sec.  6733.)     JudgmeyU  of  justice   reversed,   and   case  re- 

tained. 

[Title.'] 

As  in  Ejitry  No.  824  to  *,  and  continue:'] — that  there  is  er- 
ror in  said  proceedings  and  judgment,  and  the  said  judgment 
is  therefore  reversed  at  the  cost  up  to  the  present  time^  of 
the  defendant  in  error ;  and  execution  is  awarded  therefor. 

It  is  further  ordered  that  this  cause  he  retained  for  trial 
and  judgment,  as  in  case  of  appeaL" 

827.  (Sec.  6733.)     Judgment  reversed  for  want  of  jurisdiction 

of  justice. 

[Title.] 

As  in  Entry  No.  824  to  *,  ayid  conclude:] — that  tliere  is  er- 
ror in  said  pi'oceedings  and  judgment,  in  that  said  justice 
had  no  jurisdiction  of  the  plaintiff  in  error  [o/',  of  tlie  sub- 
ject-matter of  this  action]  ;  and  the  said  judgment  is  there- 
fore reversed  at  the  cost  up  to  the  present  time  of  the  defend- 
ant in  error ;  and  execution  is  awarded  therefor. 

Old  chancery  cases — 

828.  (Sees.  6738  and  6739.)     Order,    in    vacation,  for  stay  of 

'proceediiigs  in  chancery  proceeding  pending 
July  1,  1853. 

[Title.]  In  Chambers, .  — ,  LS — , 

On  application  of  tlie  complainant  herein,  it  is  ordered  that 
all  further  proceedings  upon  the  decree  rendered  in  this  case 
by  the  court  below  until  the  next  term  of  tliis  court,  upon 
said  complainant  giving  bond  to  ,  in  the  sum  of 

'  Including  costs  in  the  justice's  court.     Belford  v.  Parrish,  22  Ohio  St.  -371. 
'The  time  for  filing  pleadings    n  the  common  pleas  will  be  as  provided  in 
Rule  XIX.  of  the  supreme  court,  ^^o.s^,  dating  from  the  entry  of  reversal. 


-6740.]  JURISDICTION    AND    PROCEDURE    IN    ERROR.  405 

dollars,  to  the  efi'ect  that  [name  condition'^,  with  security  to 
my  ap[)roval. 

(Signed)  A.  B., 

Judg-e  of  the Court  of . 


Mandates,  and  the  entering  thereof  in  the  court  below — 
When  a  mandate  is  received  from  tlie  district  or  supreme  court,  it 

should  be  entered  on  the  journal,  and  an  order  for  execution  made  on 

the  same.' 

The  order  for  execution  may  be  by  a  general  and  standing  order  of 

the  court  that  execution  i.ssue  on  all  mandates  received,  but  it  is  better 

practice  to  order  execution  in  each  case,'  as  follows: 

Order  prcced'nuj  mandate. 

A  certain  mandate  liaviii^-   heeii  received  from  the  

Court  of ,  it  is  hereby  ordered  that  due  execution  thereof 

be  had;  which  sai<l  mandate  is  in  tlie  words  and  figures  fol- 
lowing, to  wit  [copy  mandate']. 


820.  Judr/ment  in  obedience  to  a  mandate  of  a  superior  court.- 

{.Tifh'.] 

And  now  this  cause  coming  on  for  further  consideration, 
upon  the  mandate  of  the  circnit  court,  and  the  instructions 
therein  to  this  court,  it  is  thereupon  considered  that  the  said 

recover  from  the  said the  said  sum  of dollars, 

so  found  due  by  the  district  court,  together  with  his  costs 
herein  expended. 

1  Eiirl's  Lessee  v.  Shoulder,  6  Ohio,  409. 

2  See  order  for  this  judgment  in  the  district  court,  Entry  Xo.  818,  and  note. 


406  JOURNAL    ENTRIES.  [SEC.  6741- 


CHAPTER  n. 

MANDAMUS. 

830.  (Sec.  6743.)     Order  to  show  cause  why  writ  should  not  be  allowed. 

831.  (Sec.  6743  and  674.5.)  Order  allowing  alternative  writ  without  notice. 

832.  (Sec.  6743  and  6745.)  Order  allowing  peremptory  writ  without  notice. 

833.  Order  allowing  writ  after  notice,  etc. 

834.  Order  refusing  writ. 

835.  (Sec.  6750.)     Judgment  allowing  peremptory  writ,  when  no  answer  is 

made  to  alternative. 

836.  (Sec.  6752.)     Judgment,  on  trial,  allowing  peremptory  writ. 

837.  (Sec.  6753.)     Judgment   allowing   peremptory   writ,    and    awarding 


837a.(Sec.  G753.)     Judgment  allowing  peremptory  writ,  and  sending  case 
to  jury  for  assessment  of  damages. 

838.  Judgment  for  costs,  alternative  writ  obeyed. 

839.  (Sec.  6755. )     Judgment  for  defendant. 

840.  (Sec.  6756.)     Judgment  for  plaintiff,  and  fine  imposed. 

841.  (Sec.  6757.")     Special  order  to  auditor  to  levy  tax,  etc. 

This  writ  may  be  issued  by  the  supreme,  circuit,  or  common 
pleas  courts.  The  notice  of  the  ap]>licatioii,  v^^hich  by  sec.  6743  the 
court  may  require,  does  not  need  a  journal  entry  ;  tlie  court  simply 
requii'ing,  in  their  discretion,  all  parties  to  have  notice  before  they 
make  any  order. 

830.  (See.  6743.)      Order  to  show  cause  lohy  inrit  should  not  be 

alloived. 

[Title.] 

The  relator  now  making  application  for  the  allowance  of  a 
writ  of  mandamus  herein,  the  court  order  that  said  applica- 
tion be  set  down  for  hearing  on  the inst.,  at o'clock 

-  M.,  and  that  due  notice  of  said  time  and  place  be  given  to  the 
said  C.  D.,  who  then  and  there  may  show  cause  why  said 
writ  should  not  be  allowed. 

831.  (Sec.  6743  and  6745.)      Order  alloivinfj  alternative  ivrit  with- 

out notice. 
[Title.] 

Now  came  the  relator,  and  made  application  for  the  allow- 
ance of  a  writ  of  mandamus  herein;  and,  on  consideratioQ 


-6749.]  MANDAMUS.  407 

thereof,  the  court  *  allow  an  altei'iiative  writ  to  issue  asrainst 
the  said  C.  D.,  returnable  to  this  court  on  the day  of 

And  it  is  ordered  that  the  said  C.  J),  do,  immediately  upon 
the  service  of  this  writ  [.sc/  out  dntii  to  In'  pn'formc(]'\  ;  or  that 
at  the  time  and  place  of  the  return  of  this  writ  he  show  cause 
why  he  has  not  done  so.' 

832.  (Sees.  6743  and  6745.)     Order  allorring  peremptory  writ 

without  7ioiicc. 
[TilU.] 

Now  came  the  relator,  and  moved  the  court  for  the  allow- 
ance of  a  Avrit  of  numdamus  herein  ;  and,  on  consideration, 
the  court  *  find  the  relator's  right  to  require  the  performance 
of  the  act  hereinafter  commanded  to  be  clear,  and  that  no 
valid  excuse  can  be  given  for  not  ])crforming  it:  and  there- 
fore allow  a  perem}»tory  writ  to  issue  as  prayed  for.  And  it 
is  orderad  that  the  said  0.  D.  do,  immediately  upon  the 
service  of  this  writ  [set  out  the  duly  to  be  performed'^}  [f] 

And  it  is  further  ordered  that  the  said  relator  recover  from 
the  defendant  his  costs  expended. 

833.  Order   allowing  writ  after  notice,  or  after  order  to  show  cause 

against. 

[Title.] 

And  now  this  cause  coming  on  forbearing  upon  the  appli- 
cation for  the  allowance  of  a  writ  of  mandamus,  on  con- 
sideration thereof,  the  court  finding  that  no  [or,  no  suffi- 
cient] cause  has  been  shown  against  the  same  [condude  as 
from.  *  in  Entry  No.  831,  if  an  alternative  writ  is  allowed,  or  as 
from  *  iyi  Entry  No.  832,  if  a  peremptory  vmt  is  allowecf]. 

834.  Order  refusiny  writ 
[Title.] 

J..S  in.  No.  831  to  *.  and  continue:] — find  that  the  plaintift' 
is  not  entitled  to  the  relief  prayed  for,  or  to  maintain  his  pro- 
ceedings in  mandamus  against  this  respondent.  It  is  there- 
fore adjudged  that  this  application  be  dismissed  at  the  cost 
of  the  relator. 

'  Sec.  67G6. 


408  JOURNAL    ENTRIES.  [SEC.  6750- 

835.  CSec.  6750.)     Judgment  allowing  peremptory  writ,  when  no- 

answer  is  made  to  alternative. 

[Title.] 

This  cause  coming  on  to  be  heard  on  the  return  of  the  al- 
ternative writ  of  mandamus  heretofore  issued  herein,  and  no 
answer  having  been  made  by  said  defendant,  the  court  find 
the  facts  to  be  as  set  forth  in  the  petition,  and  that  the  relator 
is  entitled  to  have  said  writ  made  peremptory. 

It  is  therefore  ordered  that  a  peremptorj^  writ  of  mandamus 
issue  against  the  said  C.  T>.  for  the  performance  of  the  act 
heretofore  alternatively  ordered,  and  that  immediately  upon 
the  service  of  this  writ  he  act  accordingly  [or  the  duty  enjoined 
may  again  he  set  outl.  * 

\_Add  any  order  as  to  costs.  If  damages  are  given,  see  Entry 
iVo.  837.     If  fine  is  imposed,  see  Entry  No.  840.] 

836.  (Sec.  6752.)     Judgment  for  plaintifi,  on  trial,  allowing  per- 

emptory ivrit. 

[Title.] 

This  cause  coming  on  to  be  heard  on  the  petition  herein,, 
the  answer  thereto,  and  the  evidence,  the  court  find,  upon 
the  issue  joined,  for  the  relators,  and  that  they  are  entitled 
to  a  peremptory  mandamus  herein. 

It  is  therefore  ordered  that  a  peremptory  writ  of  man- 
damus issue  against  the  said  C.  D.  for  the  performance  of  the 
act  heretofore  alternatively  ordered ;  and  that  immediately 
upon  the  service  of  this  writ  he  do  the  act  alternatively  or- 
ordered  [or  the  act  may  be  again  set  out],  * 

[Add  any  order  as  to  costs.  If  damages  are  given,  see  Entry 
No.  838.     If  fine  is  imposed,  see  Entry  No.  840.] 

^37.  (Sec.  6753.)  Judgment  allowing  peremptory  writ,  and 
awarding  damages. 

[Title.] 

As  in  one  of  the  last  two  entries  to  *,  and  continue  as  follows :] — 

And  the  court  further  find  that  by  reason  of  the  facts  set 
up  in  the  petition,  the  I'elator  has  been  damaged  by  the  said 
defendant  in  the  sum  of  $ . 

It  is  therefore  considered  by  the  court  that  the  said  relator,. 
A.  B.,  recover  from  the  defendant,  C.  D.,  the  said  sum  of 
dollars,  and  his  costs  herein  expended. 


-6756.]  MANDAMUS.  40^ 

837a.  (Sec.  6753.)     Judgment   allowing    peremptory   writ,    and 
sending   case   to  jury   for   assessment  of 
damages. 
[  Title.] 

As  ill.  Entry  No.  835  or  836  to  ^,  and  continue:'] — 

And  for  the  assessment  of  damages  to  which  the  relator  is 

entitled,  by  reason  of  the  facts  set  up  in  the  petition,  the  case 

is  sent  to  a  jury. 

For  entry  on  return  of  verdict  and  (jf  judgment,  follow  the  forms  of 
Entries  Nos.  242  and  243. 

838.  Judgment  for  costs — alternative  lorit  obeyed. 
ITUk:] 

This  cause  coming  on  to  be  heard  upon  the  return  of  the 
alternative  writ  of  mandamus  heretofore  issued  in  this  case, 
and  it  a}>pearing  to  the  court  that  the  respondent  herein  has 
complied  with  the  order  contained  in  said  writ  : 

It  is  therefore  considered  that  no  further  ])roceedings  be  had 
herein,  and  that  the  case  be  discontinued  ;  and  that  the  said 
defendant  pay  the  costs  herein,  taxed  at  $ . 

839.  (See.  6755.)     Judgment  for  defendant. 
[Tdlc] 

This  cause  coming  on  to  be  heard  upon  the  petition  herein, 
the  answer  thereto,  and  the  evidence,  the  court  find,  upon 
the  issue,  for  the  defendant,  and  find  that  the  relator  is  not 
entitled  to  a  writ  of  mandamus  against  liim. 

It  is  therefore  considered  that  the  defendant  go  hence  with- 
out day,  and  that  he  recover  from  the  relator  his  costs  herein 
expended. 

840.  (Sec.  6756.)     Judgment  for  plaintiff ,  and  fine  imposed. 
[Title]  ^ 

As  in  J\o,  835  or  836  to  *,  and  continue  as  follows :] — 
And  it  appearing  to  the  court  that  the  performance  of  the 
duty  here  commanded  was  specially  enjoined  by  law  upon 
the  said  defendant,  and  that  said  defendant,  without  just  ex- 
cuse, refused  [or,  neglected]  to  perform  said  duty,  it  is  ordered 

and  adjudged  by  the  court  tluit  a  fine  of dollars  be,  and 

hereby  is,  imposed  upon  tiie  said  defendant  for  this  his  said 


410  JOURNAL    ENTRIES.  [SEC.  6757- 

refusal  and  neglect,  and  that  lie  pay  the  costs  of  this  proceed- 
ing, taxed  at  $ ;  for  all  of  which  execution  is  awarded. 

8-41.   (Sec.  6757.)     Special  order  to  auditor  to  levy  tax,  etc. 

{Title.'] 

It  being  shown  to  the  court  that  the^  defendants  herein 
have   resigned    [or  otherwise  as  stated   in   this   sectiori],  it   is 

now,  on    motion  of ,  ordered  that  the    auditor  of  this 

count}^  ^eyy  and  assess  upon  the  taxable  property  of  the 
county  [or  otherwise']  the  taxes  required  by  the  former  judg- 
ment of  this  court  in  this  case,  for  the  purposes  therein 
named,  and  that  he  place  the  same  upon  the  duplicate  for  col- 
lection in  due  course  of  law  ;  and  that  a  special  order  for 
this  purpose  be  issued  by  the  clerk  of  this  court  to  R.  M., 
auditor,  as  aforesaid. 


CHAPTER  III. 

QUO  WARRANTO. 

842.  (Sec.  6763.)     Officer  allowed  to  bring  action  on  relation  of  other  per- 

son. 

843.  (Sec.  676.5.)     Member  of  bar  substituted  for  prosecutor. 

844.  (Sec.  6769.)     Order  that  notice  be  given. 

845.  (Sec.  6774.)     Decree  of  ouster  from  office. 

846.  (Sec.  677-5.)     Decree  of  ouster  against  directors  of  corporation,  and 

order  of  induction. 

847.  (Sec.  6776.)     Same,  and  order  for  new  election. 

848.  (Sec.  6780-1.)     Decree  dissolving  corporation  for  non-user. 

849.  Report  of  trustee  apj^roved,  etc. 

850.  (Sec.  6780-1.)     Decree  of  ouster  against  a  corporation,  from  exercise 

of  illegal  power. 

851.  (Sec.  6787.)     Order  that  directors  of  bank  give  security,  etc. 

852.  (Sec.  6787.)     Bond  approved. 
85.3.   Judgment  for  defendants. 

842.  (Sec.  6763.)      Officer  allowed  to  bring  action  on  relation  of 
other  persoji.^ 
[Title.] 
On  motion,  the  prosecuting  attorney  is  granted  leave  to 

^  This  allowance  is  often  made  by  the  judge  indorsing  on  the  back  of  the  pe- 
tition permission  to  file  the  same;  but  an  entry  should  also  be  made  on  the 
journal,     fcjee  sec.  6769. 


-6774.]  QUO    WARRANTO.  411 

l)ring  an  action  of  quo  warranto,  on  the  relation  of  A.  B., 
against  C.  D. 

If  tinder  Sub.  1  of  sec.  6760,  rourt  may  add  .•] — upon  security 
for  costs  being  given  by  the  said  A.  B. 

843.  (Sec.  6765.)     31cndjer  of  bar  substituted  for  prosecutor. 
[Tme.] 

On  motion  of  ,  and  the  court  finding  [give  cause],  it  is 

hercl)y  ordered  tliat  L.  M.,  a  disinterested  member  of  the 
bar,  be,  and  lie  is  hereby,  appointed  to  act  in  the  place  of  the 
prosecuting  attorney  in  bringing  and  prosecuting  an  action 
of  quo  warranto  [on  the  relation  of  A.  B.]  against  C.  D. 

844.  (Sec.  6769.)     Order  that  notice  be  given,  etc. 
[7itle.] 

Application  having  been  made  herein  for  leave  to  tile  a 
petition  in  quo  warranto,  it  is  ordered  by  the  court  that  the 
hearing   of   said  application  l)e  set  down   for  Tuesday,  the 

inst.,  at  o'clock  a.  m.,  and  that  notice  thereof  be 

given  to  said  defendants  by  the  prosecuting  attorney. 

If,  upon  hearing,  leave  be  un-anted,  make  Elntry  No.  842,  above. 

845.  (Sec.  6774.)     Decree  of  ouster  from  office. 
[Title.] 

This  cause  being  heard  on  the  petition,  the  answer  of , 

the  testimony,  and  argument  of  counsel,  the  court,  on  con- 
sideration, find  [state  facts]  ;  and  that  by  reason  thereof  the 
said  election  was  void  and  of  no  effect,  and  that  the  said  de- 
fendant is  guilty  of  intruding  into  the  office  of  mayor  of  said 

village  of  ,  and  of  unlawfully  holding    and  exercising 

the  same. 

It  is  therefore  ordered  and  adjudged  that  the  said  C.  D. 
be,  and  he  hereby  is,  ousted  and  altogether  excluded  from 
said  office,  and  from  all  the  franchises,  privileges,  and  emolu- 
ments thereof,  and  that  the  said  relator  recover  from  the  said 

defendant  his  costs  therein  expended,  taxed  at  § . 

27 


412  JOURNAL   ENTRIES.  [SEC.  6775- 

If  necessary,  add  as  follows,  by  sec.  6785  :] — 

It  is  further  ordered  by  the  court  that  said  defendants  forth- 
with deliver  over  all  the  books,  papers,  property,  money^ 
deeds,  notes,  bills,  and  obligations  to  the  relators  herein. 

Ordered,  that  a  transcript  of  these  proceedings,  includuig 
a  copy  of  this  order,  be  sent  to  the  Court  of  Common  Pleas 

of County,  with  a  special  mandate  directing  said  court 

to  carry  the  above  order  into  efi'ect. 

For  proceedings  in  attachment,  under  sec.  6785,  when  order  is  dis- 
obeyed, see  Contempts  of  Court,  page.  206. 

846.  (Sec.  6775.)  Decree  of  ouster  against  directors  of  corpora- 
tion, and  order  for  induction. 

[Title.] 

This  cause  came  on  to  be  heard  upon  the  petition,  answer, 
and  reply,  and  upon  the  proofs  and  the  arguments  of  coun- 
sel ;  on  consideration  whereof,  the  court  are  of  opinion, 
and  do  find,  that  at  the  annual  election  for  directors  of  the 

Turnpike  Company,  held  on  the day  of ,  18 — , 

each  of  the  relators  herein  was  the  lawful  owner  of  certain 
shares  of  the  capital  stock  of  said  company,  and  entitled  to 
cast  one  vote  for  each  of  said  shares  for  directors  aforesaid, 
and  that  at  said  election  each  of  said  relators  offered  to  vote 
upon  said  shares  by  ballot,  and  tendered  his  ballot  accordingly 
for  the  relators  for  directors  of  said  company  to  serve  for  one 
year  from  March  1,  1872,  but  that  said  ballots  were  rejected, 
and  the  defendants  were  declared  elected,  and  are  now  acting 
as  such  directors,  whereas,  if  said  ballots  had  been  received, 
as  of  right  they  should  have  been,  the  relators  would  have 
received  a  majority  of  all  of  the  votes  cast  at  said  election, 
and  have  been  duly  elected  and  entitled  to  qualify  and  act 
as  such  directors  for  one  year  from  said  March  1,  1872, 

Wherefore  it  is  ordered  by  the  court  that  the  defendants  be, 
and  they  are  hereby,  ousted  and  altogether  excluded  from  all 
and  singular  their  title  and  right,  franchise  and  privilege,  to 
act  as  directors  of  said  company  by  virtue  of  said  election.  * 
And  that    the   relators  herein   be   inducted  thereinto ;  and, 


-6780.]  QUO   WARRANTO.  413 

further,  that  they  recover  from  the  defendants  their  costs 
herein  expended.^ 


847.  (Sec.  6776.)     Same  as  last,  and  order  for  new  election. 
[Title.'] 

As  in  last  to  *,  and  continue ;] — And  it  is  further  or- 
dered by  the  court  that  a  new  election  for  directors  of  said 

corporation  be  hehl  on  the of  day ,  18 — ,  and  that 

R.  X.  and  L.  S.  act  as  the  judges  of  said  election,  and  give 
previous  notice  of  the  same,  and  perform  all  their  other  duties 
according  to  law. 

It  is  further  adjudged  that  the  relators  recover  from  the 
defendants  their  costs  herein  expended. 

[Add,  if  necessary,  the  orders  follo^oing  Entry  No.  845]. 

For  entries  under  sec.  G779,  see  entries  under  Contempts  of  Court, 
page  206. 

848.  (Sec.  6780-1.)     Decree  dissolving  corporation  for  non-user, 

etc. 

[Title:] 

Thi^^  cause  coming  on  to  bo  heard  upon  the  petition  and 
answer,  testimony,  and  argument  of  counsel,  upon  consid- 
eration thereof,  the  court  lind  that  the  defendant,  the  said 

company,  has  [state  fads],  whereby  it  has  surrendered  [or, 

forfeited]  its  corporate  rights,  })rivileges,  and  franchises. 

It  is  therefore  considered  and  adjudged  that  said  corpora- 
tion be  ousted  and  altogether  excluded  from  such  corporate 
rights,  privileges,  and  franchises,  and  that  said  corporation 
be  dissolved. 

It  is  further  ordered  that  L.  M.  and  R.  S.  be,  and  they 
hereby  are,  appointed  trustees  of  the  creditors  and  stock- 
holders of  the  said  corporation,  with  full  power  to  settle  the 
affairs  of  the  corporation,  to  collect  and  pay  debts,  and  to 
divide  among  the  stockholders  of  said  corporation  the  moneys 

'  The  order  for  turning  over  books,  moneys,  etc.,  and  for  transcript,  as  in  last 
decree,  may  be  made,  if  necessary. 


414  JOURNAL    ENTRIES.  [SEC.  6780- 

and  property  remaining,  and  that  they  report  their  proceed- 
ings to  this  court  for  confirmation. 

And  it  is  ordered  that  said  trustees,  before  entering  upon 
the  duties  of  their  office,  give  bond  in  the  sum  of dol- 
lars, conditioned  according  to  law,  with  sureties  to  the  ap- 
proval of  this  court. 

And  now  thereupon  came  the  said  L.  M.  and  R.  S.,  and 
presented  their  bond  as  aforesaid,  with  T.  M.  and  R.  M.  as 
sureties  to  the  approval  of  the  court. 

849  Report  of  trustee  ajpproved,  etc. 

[Title.'] 

This  cause  came  on  for  hearing  on  the  motion  to  confirm 
the  report  of  L.  M.,  the  trustee  heretofore  appointed  herein, 
and  the  court  finding  that  he  has  in  all  things  obeyed  the 
order  of  this  court,  and  paid  over  all  the  moneys  coming  into 

his  hands  as  such  trustee,  except  the  sum  of  $ ,  which  the 

court  allow  him  as  his  reasonable  fee  in  this  case,  and  has 
paid  the  costs  of  this  proceeding,  it  is  hereby  ordered  that 
the  proceedings  and  report  of  the  said  trustee  be,  and  they 
hereby  are,  confirmed  and  approved.  And  he  is  hereby  dis- 
charged from  the  duties  and  responsibilities  of  said  office. 

850.  (Sees.  6780-1.)     Decree  of  ouster,  against  a  corporation,  from 

exercising  illegal  power. 

[Title.'] 

This  cause  coming  on  to  be  heard  upon  the  petition  and 
answer,  testimony,  and  argument  of  counsel,  upon  considera- 
tion thereof,  the  court  find  that  the  defendant,  the  said  

Company,  has,  as  alleged,  exercised  the  franchise  and  priv- 
ilege of  carrying  on  the    business    of  manufacturing  paper 

outside  of  the  State  of  Ohio,  to  wit,  at ,  in  the  State  of 

Indiana,  contrary  to,  and  without  the  authority  of,  the  laws 
of  the  State  of  Ohio,  and  in  violation  of  the  law  of  its  in- 
corporation. 

Wherefore,  it  is  ordered  and  decreed  that  said  company  be, 
and  it  is  hereby,  ousted  of  said  franchise  and  privilege  of  car- 
rying on  said  business  outside  of  the  State  of  Ohio  as  afore- 
said ;  and  that  the  plaintitf  recover  from  said  defendant  his 
costs  herein  expended. 


-6787.]  QUO    WARRANTO.  415 

For  proceedings  under  see.  6783,  see  Contempts  of  Court,  page 
206. 

For  order  of  delivery  of  books,  etc.,  under  sec.  6785,  see  after  No. 
845. 

For  proceedings  in  attachment  when  order  is  not  obeyed,  see  Con- 
tempts OF  CouKT,  page  206. 

For  proceedings  and  entries  granting  injunction,  under  sees.  6786,  7, 
and  8,  see  Injunction,  page  188. 

851.  (Sec.  6787.)     Order  that  directors  of  bank  give  security, 

etc. 

[Title.-] 

This  cause  being  heard  on  motion  of  the  relators,  to  re- 
quire the  defendants  to  give  security,  etc.,  and  the  court  iind- 
ing  upon  the  proofs  offered  that  said  defendants  have  violated 
[or,  are  about  to  violate]  the  franchises  of  thier  corporation, 
in  this,  to  wit  [specify],  it  is  ordered  that  the  said  C.  D.,  E.  F., 
etc.  [nar)\e  alC],  directors  of  the  [name  corporation^,  give  se- 
curity to  the  stockholders  thereof,  by  bond  in  the  sum  of 

$ ,  with  sureties  to  the  satisfaction  of  the  court,  for  the 

proper  discharge  of  their  duties,  and  for  the  proper  manage- 
ment and  security  of  the  assets  of  said  company. 

852.  (Sec.  6787.)     Bond  approved 
[Title.] 

And  now  come  C.  I).,  E.  F.,  etc.  [naming  all],  directors  of 
[name  corporation],  and  enter  into  an  undertaking,  as  hereto- 
fore ordered  by  the  court  in  the  sum  of  $ ,  with  R.  S.  and 

J.  J),  as  sureties  to  the  approval  of  the  court. 

853.  Judgment  for  defendants. 
[Title.] 

This  cause  came  on  to  be  heard  on  the  petition  and  reply, 
and  (»n  the  proof  and  arguments ;  upon  consideration  whereof, 
the  court  are  of  opinion  and  find  that  the  said  relators  are 
not  entitled  to  the  relief  sought.     And  that  the  defendants 

were,  on  the  day  of  ,  18 — ,  duly  elected  directors 

of  the Company  for  the  term  of  three  years  from  said  day, 

and  are  entitled  to  all  the  privileges  and  franchises  thereof. 


416  JOURNAL    ENTRIES.  [SEC.  6793- 

Wherefore,  it  is  ordered  and  adjudged  that  said  petition 

be  dismissed  at  the  cost  of  the  relators,  taxed  at  $ [or, 

that  said  defendant  go  hence  without  day  and  recover  from 
the  said  relators  their  costs  herein  expended]. 

To  all  of  which  said  relators  and  said  prosecuting  attorney 
except. 


ACTIONS,   PENDING   PROCEEDINGS   IN   BANKRUPTCY.  417 


MISCELLANEOUS  PROCEEDINGS. 

I.   Actions,  pkxdixg  riuxKEDiNGs  ix  bankruptct. 

II.     ASSKSSMEXT  FOIl  STKEKT  IMPROVEMENT. 

III.  Chattel  Mortgage. 

IV.  CoXVEVANCE  OF  REAL  ESTATE. 
V.     FORKIGN  JUDGMENT. 

VI.  Leasehold  estate. 

VII.  Mechaxic's  Lien. 

VIII.  Nattkamzation. 

IX.  Removal  axd  kesiirvation  of  cases. 

X.  Specific  performaxck. 

XL  .Stockholdkr's  Liahii.ity. 

XII.  Vendor's  i.iex. 

XII I.  Ve.sting  property  in  trustees. 

XIV.  Wills. 


I.  ACTIOX.S,  PENDING  PROCEEDING.'^  IN  BANKRUPTCY.^ 
[Revised  .'statutes  of  the  L'nited  .States.] 

854.  (.Sec.  5106.)     Order  staying,  pending  proceedings,  etc. 

855.  (Sec.  51U6.)     (Jrder  that  case  proceed  to  judgment. 

856.  Order  staying,  after  discharge,  etc. 

857.  Case  dismissed,  when  institued  after,  etc. 

The  provisions  of  sections  5105  and  5106  of  the  Revised  Statutes  of 
the  United  States,  concerning  a  stay  of  proceedings,  are  addres.sed  quite 
as  much  to  the  state  courts  as  to  the  bankruptcy  tribunals,  and  are  to 
be  applied  and  enforced  by  the  former  quite  as  much  as  by  the  latter.* 

'These  entries  are  retained  for  the  reason  that  there  are  many  unfinished 
cases  in  the  bankrupt  courts.  i 

^In  re  Rosenberg,  2  B.  R.  236  ;  s.  c,  3  Ben.  14 ;  in  re  Metcalf  et  al,  1  B.  R. 
20L 


418  JOURNAL    ENTRIES. 

In  cases  of  voluntary  bankruptcy,  an  application  fc^r  a  stay  may  be 
made  as  soon  as  the  petition  is  filed,  but  no  application  can  be  made  in 
cases  of  involuntary  bankruptcy,  until  the  order  of  adjudication  is 
passed/ 

The  stay  in  the  state  courts  is  obtained  upon  motion  supported  by  the 
production  of  a  copy  of  the  order  of  adjudication.  It  will  not  be  made 
by  the  court  of  its  own  motion,  or  on  the  plaintiff's  suggestion.  A  valid 
judgment  can  be  rendered  against  a  bankrupt,  unless  he  avails  himself  of 
the  proceedings  in  bankruptcy.^  The  stay  is  temporary,  as  expressed  in 
the  order.  It  ceases  as  soon  as  the  question  of  the  bankrupt's  discharge 
is  decided.  No  order  to  show  its  termination  is  necessary.^  If  the 
bankrupt  be  discharged,  he  must  plead  his  discharge  in  the  suit  as  his 
protection  against  its  further  prosecution.^  If  there  is  unreasonable 
delay  in  procuring  a  discharge,  the  order  staying  proceedings  will  be 
vacated.* 

Where  one  partner  is  bankrupt,  the  proceedings  may  be  stayed  as  to 
him,  and  a  judgment  may  be  entered  against  the  other  partner.^ 

An  action  pending  in  the  court  of  appeals  of  the  state  to  which  an 
appeal  was  taken  by  the  bankrupt,  prior  to  the  commencement  of  pro- 
ceedings in  bankruptcy,  may  be  stayed.^ 

The  state  courts  may  also  by  injunction  protect  the  bankrupt  in  the 
enjoyment  of  property  acquired  after  the  commencement  of  proceed- 
ings in  bankruptcy  pending  the  question  of  discharge,  as  against  an 
execution  levied  on  it  in  satisfaction  of  a  judgment  obtained  before 
the  declaration  of  bankruptcy.' 

By  the  discharge  in  bankruptcy  an  action  is  barred  if  the  debt  is 
provable,  although  it  is  not  actually  proved.®  And  when  the  discharge 
is  pleaded  by  the  bankrupt,  the  action  will  be  finally  stayed.  The  dis- 
charge can  not  be  taken  advantage  of  by  motion.' 

1  Maxwell  et  al.  v.  Faxton  et  al,  4  B.  R.  210;  s.  c,  18  Pitts.  L.  J.  107  ;  coji- 
ira,  in  re  Bromley  &  Co.,  o  B.  K.  fiSG. 

-  Palmer  r.  Merrill,  57  Me.  2G ;  in  re  Leibenstein  et  al.,  4  C.  L.  N.  P.OO  ;  Stone 
V.  National  Bank,  :)9  Ind.  284. 

3  In  re  Thomas,  ?,  B.  R.  38;  in  re  Rosenberg,  2  B.  R.  236. 

*  In  re  Belden,  6  B.  R.  443  ;   s.  c,  5  Ben.  47G. 
^Lomme  v.  Kintzing,  1  Montana,  290. 

6  In  re  Metcalf  et  al.,  1  B.  R.  201.  But  see  contra,  Merritt  v.  Glidden,  39  Cal. 
659. 

'  Mosby  V.  Steele,  7  Ala.  299  ;  Turner  v.  Gatewood,  8  B.  Mon.  613. 

*  Hardy  v.  Carter,  8  Humph.  153;  Rogers  r.  Western  Ins.  Co.,  1  La.  An.  161. 
'Fellows  I'.  Hall,  3  McLean,  281. 


ACTIONS,    rENDIN(}    PROCEEDINGS    IN    BANKRUPTCY.  419 

By  section  5047,  Revised  Statutes  of  the  United  States,  the  assignee 
in  l)!uikrupt('vin:iy,  in  certain  cases,  be  substituted  for  the  bankrupt  as 
a  i)art y  to  a  pending  suit.  Use  the  usual  forms  as  given  in  Chapter 
III.,  Parties  to  Action,  page  14. 

854.  (Sec.  5106.)  Order  stayiiu/,  pendwy  proceedings  in  bank- 
ruptcy. 

[Title.'] 

This  cause  coming  on  to  be  heard  on  the  motion  of  the 
defendant  for  a  stay  of  proceedings,  and  it  appearing  to  the 
court  tliat  the  said  defendant  has  been  adjudicated  a  bank- 
rupt [(rr,  has  filed  his  petition  in  bankruptcy]^  in  the  District 
Court  of  the  United  States  for  the  Southern  District  of  Ohio, 
all  further  proceedings  in  tliis  action  are  hereby  stayed  until 
the  determination  of  the  court  in  bankruptcy  on  the  ques- 
tion of  the  said  defendant's  discharge. 

855.,  (Sec.  5100.)      Order  that  case  proceed  to  jadgment. 

[Title. -] 

This  cause  coming  on  for  hearing  on  the  motion  of  the 
defendant  to  stay  proceedings  herein,  and  it  appearing  to  the 
court  tliat  the  amount  due  this  jdaintiff  is  in  dis[»ute,  and 
leave  having  been  obtained  from  tlic  coui't  in  bankruptcy,  it 
is  ordered  that  this  case  proceed  to  judgment  for  the  purpose 
of  ascertaining  the  amount  due.  But  execution  on  such  judg- 
ment sliall  be  stayed. 

856.   Order  staging,  after  discharge  in  bankruptcy. 

[Title.'] 

And  now  this  cause  coming  on  to  be  heard,  and  it  appear- 
ing upon  tlie  plea  of  the  defendant  that  since  the  commence- 
ment of  this  action  the  said  defendant  has  obtained  a  dis- 
charge in  bankruptcy  in  the  District  Court  of  the  United 
States  for  the  Southern  District  of  Ohio,  it  is  ordered  by  the 
court  that  all  further  proceedings  in  this  action  be,  and  they 
are  hereby,  stayed. 

^  See  supra 


420  JOURNAL    ENTRIES. 

857.  Case  dismissed  when  instituted  after  discharge  m  bank' 
rwptcy. 

[Title.'] 

And  now  it  appearing  to  the  court  that  the  said  defendant 
had  obtained  a  discharge  in  bankruptcy  before  the  filing  of 
the  petition  herein,  it  is  therefore  ordered  that  this  action 
be  stricken  from  the  docket  for  want  of  jurisdiction. 


II.  ASSESSMENT  FOR  STREET  IMPROVEMENT. 

858.  (Sec.  2287.)     Personal  judgment,  and  order  for  sale. 

859.  (Sec.  2287.)     Same,  when  assessment  is  payable  in  installments. 

860.  (Sec.  2287.)     Decree  enforcing  lien. 

861.  (Sec.  2289.)     Judgment,  etc.,  when* assessment  irregular. 

858.  (Sec.  2287.)  Personal  judgment^  and  order  for  sale,  where 
council  makes  the  assessment  payable  in  one 
installment} 

ITitlc.-] 

Finding  III.,  -page  99,  or,  if  by  default,  Finding  IV.,  page 
100,  and  continue:] — The  court  further  find  that  the  assess- 
ment set  forth  in  the  petition  is  in  all  respects  regular,  and  is 
a  proper  charge  against  the  several  defendants  owning  the 
several  lots  of  land  described  in  the  petition,  and  is  a  lien  upon 
the  said  lands  respectively;  and  find  that  there  is  due  to  the 
plaintiff  from  the  defendant,  C.  D.,  on  account  of  said  assess- 
ment, on  the  lot  of  land  firstly  in  the  petition  described,  with 

interest  to  the  first  day  of  this  term,  tlie  sum  of  dollars, 

and  also  the  sum  of dollars  penalty  for  the  non-payment 

thereof,  amounting  in  all  to  the  sum  of  $ ,  which  sum  is  a 

lien  upon  the  said  lot. 

It  is  therefore  adjudged  by  the  court  *  that  the  said  plaint- 
iff recover  from  tlie  said  defendant,  C.  D.,  the  said  sum  of 
$ ,  together  with  its  costs  herein  expended.  And  in  de- 
fault of  payment  of  said  snm  for days,  that  the  said  lot 

of  land  be  sold  for  the  satisfaction  of  said  judgment,  and  t  .at 

an  order  issue  therefor  to  the  sherifl'  of county,  directing 

him  to  appraise,  advertise,  and  sell  such  premises  as  upon  ex- 
ecution, and  bring  the  proceeds  into  court  for  further  order, 

•As  it  may  do  by  sec.  2264,  78  O.  L.  259. 


ASSESSMENT    FOR    STREET    IMPROVEMENT.  421 

And  tlie  court  Und,  that  the  assessment  on  the  lot  sec- 
ondly (a)  in  the  petition  described,  belonging  to  the  defendant, 
E.  F.,  amounts  to  $250,  and  is  a  lien  thereon.  And  the  court 
find,  upon  the  evidence  adduced,  that  the  value  ofthe  said  lot  of 
land,  as  assessed  for  taxation,'  at  the  time  the  assessment  was 
made  [or,  that  the  value  of  the  said  lot  of  land  after  the  im- 
provement was  made],^  was  $1,500,  and  that  there  is,  there- 
fore, due  to  the  plaintifi  from  said  defendant,  C.  D.,  on  ac- 
count of  the  said  aH;sessment,  the  one-fifteenth'  [or,  the  one- 
tenth]^  of  said  value,  to  wit,  the  sum  of  S ,  with  interest 

from  the day  of .  18 — ,  to  the  first  day  of  this  term, 

and  also  the  sum  of  $ penalty  for  tlie  non-i)ayment  of  the 

same:  amounting  in  all  to  the  sum  of  $ ;  the  balance  of 

said  assessment  to  become  payable  [c/n  t/w  rourf  may  order]. 

It  is  therefore  adjudged  by  the  coui-t  *  ^conclude  as  from  * 
above.'l 

And  the  court  find  that  the  assessment  on  the  lot  thirdly 
in  the  })etition  described'  belonging  to  tlie  defendant,  G.  II., 
amounts  to  four  hundred  dollars,  and  find  upon  the  evidence 
adduced  that  the  value  of  said  lot  as  assessed  tor  taxation' [or, 
after  the  improvement  was  made^]  was  fifteen  hundred  dol- 
lars;  and  that  therefore  the  entire  assessment  chargeable  on 
said  lot  being  twenty-five  per  cent  of  its  value,  as  above,  is 
$375  ;  which  sum  is  a  lien  thereon;  the  plaintiff  being  remit- 
ted to  the  city  of for  the  balance  of  said  assessment. 

The  court  further  find  that  there  is  due  and  payable  to  the 
plaintiti"  from  the  defendant,  G.  11.,  at  the  present  time  on  ac- 
count of  said  assessment  the  sum  of  S .  feeing  the  one-fif- 
teenth' [or,  one-tenth^  of  said  value,  with  interest  from  the 
day  of ,  18 — ,  to  the  first  day  of  this  term,  and  also 

(«)  This  is  a  case  where  the  assessment  amounts  to  less  than  twenty-five 
and  more  than  fifteen  per  cent  ofthe  value  ofthe  lot  as  assessed  for  taxation, 
as  provided  for  in  sec.  2270.  82  O.  L.  155,  or  more  than  ten  per  cent  of  the  value 
ofthe  lot  after  the  improvement  was  made,  as  provided  for  in  sec.  2271,  82  O. 
L.  200. 

'See  sec.  2270,  as  amended  82  O.  L.  155. 

2See  see.  2271,  as  amended  82  O.  L.  260. 

^This  is  a  case  where  the  assessment  amounts  to  more  than  twenty-five  per 
cent  ofthe  value  of  the  lot  as  assessed  for  taxation,  as  provided  for  in  sec.  2270, 
82  O.  L.  155,  or  more  than  twenty-five  per  cent  ofthe  value  ofthe  lot  after  the 
improvement  is  made,  as  provided  for  in  sec.  2271,  82  ().  L.  260. 


422  JOURNAL  ENTRIES. 

$ penalty  for  the  non-payment  of  the  same,  amounting 

in  all  to  the  sum  of  $ ,  the  balance  of  said  assessment 

chargeable  on  said  lot  to  become  payable  [as  com^t  may  order^ 
It  is  therefore  adjudged  hy  the  court  *  [conclude  as  from  * 
above,  and  so  with,  each  lot  separately.'] 

859.  (Sec.  2287.)  Personal  judgment  and  order  for  sale  where 
couneU  makes  the  assessment  payable  in  sev- 
eral installments} 

[Title.'] 

Finding  III.,  page  99,  or,  if  by  default,  Finding  IV.,  page 
100,  and  continue:] — The  court  further  find  that  the  assess- 
ment set  forth  in  the  petition  filed  herein  is  in  all  respects 
regular  and  [in  conformity  with  the  terms  of  the  petition  for 
the  improvement  presented  to  the  council,  which  said  petition 
was  properly  signed  by  three-fourths  in  interest  of  the  owners 

of  the  property  abutting  upon  said  street  as  improved, 

and  that  said  assessment^]  is,  to  tiie  extent  hereinafter  named, 
a  proper  charge  against  the  several  defendants  owning  the 
i-     oral  lots  of  land  described  in  the  petition  and  a  lien   npon 

said  lands  respectively,  and  is  payable  in equal  annual 

installments^  \_or  at  other  times  as  council  may  order]  as  directed 
by  said  council.  And  the  court  find  that  the  assessment  on  the 
lot  firstly  in  the  petition  described,'  belonging  to  the  defend- 
ant, C.  D.,  amounts  to  $250,  iind  is  a  lien  thereon,  and  that 
there  is  due  to  the  plaintiff  from  said  defendant,  C.  D.,  as  the 

first  annual  instalhnent  of  said  assessment,  the  sum  of 

dollars,  with  interest  from  the Any  of ,  18 — ,  to  the 

first  day  of  this  term,  and  also  the  sum  of  $ penalty  for 

the  non-payment  of  tlie  same,  amounting  in  all  to  doL 

lars.  [Add  any  judgment  mude  by  the  court  as  to  suhsequod  in- 
stalhnods.] 

'See  sec.  2-2U4,  78  U.  L.  -259. 

^This  clause  to  be  used  in  case  the  petition  for  the  improvement  was  Hied  un- 
der sec.  2272,  as  amended  82  O.  L.  laS. 

•''See  sec.  2261,  as  amended  78  O.  L.  2o9. 

*This  is  a  case  where  the  petition  for  the  improvement  was  not  filed,  under 
sec.  2272,  as  amended  82  O.  L.  155,  and  where  the  assessment  does  not  exceed 
twenty-five  per  cent  of  the  value  of  the  lot. 


ASSESSMENT  FOR  STREET  IMPROVEMENT.  422a 

It  is  therefore  adjudged  by  the  eourt  *  \_conclade  as  from  * 
in  entry  iVo.  858.] 

And  the  court  find  that  the  assessment  levied  by  council  on 
the  lot  secondly'  in  the  [)etition  described,  belonging  to  the 
defendant,  E.  F.,  amounts  to  ^400,  and  the  court  find,  upon 
the  evidence  adduced,  that  the  value  of  said  lot,  as  assessed 
for  taxation^  [or,  that  the  value  of  said  lot  after  the  improve- 
ment was  made'^J,  Avas  $1,200,  and  that  therefore  the  entire  as- 
sessment chargeai)le  on  said  lot,  being  twenty-live  per  cent  of 

such  value,  is dollai's,  which  sum  is  a  lien  thereon  ;  the 

plaintiff  being  remitted  to  the  city  of for  the  balance  of 

said  assessment.  yVnd  the  court  find  that  there  is  due  to  the 
plaintiff  from  the  said  E.  E.,  as  the  first  annual  installment  of 

said  assessment,  the  sum  of  ^ ,  with  interest  from  the 

day  of -,  18 — ,  to  the  first  day  of  this  term,  and  also  $ 

penalty  for  the  non-payment  of  the  same,  amounting  in  all  to 
$ .     [A'/d  any  order  made  as  to  the  siibsrqaent  installments.  I 

It  is  therefore  adjudged  by  the  court  *  [conclude  as  from  * 
in  entry  No.  858.]. 

And  the  court  find  that  that  the  assessment  on  the  lot 
tiiirdly  in  the  petition  described,^  belonging  to  the  defendant, 
G.  II.,  amounts  to  $300,  and  is  to  its  full  amount  a  lien  thereon, 
the  said  E  F.  having  with  others  signed  the  petition  for  the 
improvement  as  above  named,  and  that  there  is  due  to  the 
plaintiff  from  the  said  G.  II.,  as  the  first  annual  installment 

of  said  assessment,  the  sum  of  § ,  with  interest  from  the 

day  of ,  18 — ,  to  the  first  day  of  this  term,  and  also 

$ penalty  for  the  non-payment  of  the  same,  amounting  in 

all  to d()llurs.  [Add  any  judgment  of  the  court  as  to  subse- 
quent installments.'] 

It  is  therefore  adjudged  by  the  coun  *  [conclude  as  from  * 
in  entry  No.  858.] 

And  the  court  find  that  the  assessment  on  the  lot  fourthly 

'This  is  a  case  wiiere  the  petition  for  the  improvement  was  not  tiled,  under 
sec.  2272,  as  amended  82  O.  L.  155,  and  where  the  assessment  exceeds  twenty- 
five  per  cent  of  the  value  of  the  lot  as  listed  for  taxation,  under  sec.  2270,  as 
amended  82  O.  L.  155,  or  of  the  value  of  the  lot  after  the  improvement  was 
made,  under  sec.  2271,  as  amended  82  O.  L.  260. 

^See  sec.  2270,  82  0.  L.  155. 

3See  sec.  2271,  82  O.  L.  2G0. 

*This  is  a  case  where  a  petition  was  filed,  under  sec.  2272,  as  amended,  82  O. 
L.  155,  and  where  the  assessment  exceeds  twentj'-five  per  cent  of  the  value  of 
the  lot  after  the  improvement  was  made,  and  where  the  owner  signed  the  peti- 
tion for  the  improvement. 


4226  .TOURXAL    ENTRIES. 

ill  the  petition  lie-cnbud.'  l)el()iigiu<;  to  the  defendant,  J.  K., 
amounts  to  $350.  And  the  court  lind,  upon  the  evidence  ad- 
duced, that  tlie  value  of  the  said  lot  after  the  improvement 
was  made  was  $1,200,  and  that  the  said  J.  K.  did  not  sign  the 
petition  for  said  im[»roveraent,  and  therefore  that  the  entii-e 
assessment  chargeable  on  said  lot  is  twenty -five  per  cent  of 
such  value,  viz.,  $300,  and   that   to   that    extent   it  is  a  lien 

thereon,  the  plaintiff  being  remitted  to  the  city  of for  the 

balance  of  said  assessment;  and  that  there  is  due  to  the  plaint- 
iff" from  said  defendant,  G.  H.,  as  tiie  first  annual  installment 

of  said  assessment,  the  sum  of  $ ,  with  interest  from  the 

day  of ,  18 — ,  to  the  first  day  of  this  term,  and   also 

the  sum  of  $— — penalty  for  the  non-payment  of  the  same, 

amounting  in  all  to  dollars.     [A'ld  any  Jadf/ment  of  the 

court  as  to  subsequent  installmenls^ 

It  is  therefore  adjudged  by  the  court  *  [conclude  as  from  * 
in  entry  No.  858.  And  so  continue  to  find  and  decree  ivith  each 
lot  separately.] 

861.  (2289,  as  amended  80  O.  L.  52.)     Judgment  for  amount 
properly  chargeable,   etc.,   when,   assessment   is 

[Title.]  irregular. 

This  cause  coming  on  this  day  forbearing,  was  submitted  to 
the  court  upon  the  pleadings  and  evidence  without  the  inter- 
vention of  a  jury;  on  consideration  wliereof  the  court  find 
that  by  reason  of  irregularity  and  defect  in  the  proceedings  of 
[specify  defect]  the  assessment  set  up  in  the  petition  was  not 
pro})erly  made  against  the  said  defendant  or  upon  the  lots  of 
land  sought  to  be  charged,  and  is  therefore  invalid. 

The  court  further  find,  from  the  evidence,  that  expense  has 
been  incurred  in  the  improvement  of  said  street,  which  is  a 
proper  charge  against  the  several  defendants  and  upon  the 
several  lots  of  land,  in  the  petition  described,  in  the  amounts 
hereinafter  found  against  each  respectively. 

And  the  court  find  that  there  is  due  to  the  plaintiff"  from  tlie 
defendant,  C.  D.,  on  account  of  expense  incurred  as  aforesaid, 
properly  chargeable  against  the  lot  of  land  firstly  in  the  peti- 
tion described,  with  interest  to  the  first  day  of  this  term,  the 
sum  of dollars.^ 

It  is  therefore  considered,  etc.,  [enter  Judgment  and  order  of 
sale  as  from  *  to  end  of  paragraph  in  entry  No.  858.] 

'This  is  a  case  where  the  petition  for  the  improvement  was  filed,  under  sec. 
2272,  as  amended  82  O.  L.  155,  and  where  the  assessment  exceeds  twenty-five 
per  cent  of  the  vrtlne  of  the  lot  after  the  improvement  was  made,  and  where  the- 
owner  did  not  si<;n  the  petition  for  the  improvement. 

'The  penalty  can  not  be  collected.     Uppington  v.  Oviatt,  24  O.  S.  232. 


CHATTEL   MORTGAGE.  423 

In  all  of  the  above  cases  the  subsequent  decrees  of  confirmation  and 
distribution  will  be  similar  to  the  same  decrees  after  sale  on  execution. 


III.   CHATTEL  MORTGAGE. 

In  a  suit  to  foreclose  a  chattel  mortgage,  where  the  court  has  juris- 
diction of  the  parties  in  interest,  it  is  not  necessary  to  a  decree  of 
foreclosure  that  the  mortgaged  property  should  be  within  the  territorial 
jurisdiction  of  the  court.' 

862.  Ju</pne7i(  and  decree  for  sale. 

[Tifle.] 

After  rerjular  personal  j)idr/me7}(,  add  .-] — 

The  court  further  find  tluit  the  defendant  executed  the 
chattel  mort<>;age,  as  stated  in  the  petition,  and  that  the 
same  is  a  valid  and  subsisting  lien  on  the  property  in  the  pe- 
tition described;  and  that  the  plaintiff  is  entitled  to  have  said 
chattel  property  sold  to  })ay  the  amount  due  him  as  aforesaid. 

It  is  therefore  ordered  that  unless  the  defendant,  Avithin 

days  from  the  entry  hereof,  pay  to  said  plaintiff  said  sura 

of  $ ,  with  interest  and  costs  of  suit,  the  chattel  prop- 
erty described  in  the  petition  shall  be  sold  by  the  sherifi'-  of 
this  county,  as  upon  execution  f  and  that  an  order  issue  for 
that  purpose. 

An  entry  eoufirniing  sale  and  distributing  proceeds  should  be  made. 
Follow  forms  in  foreclosure  of  mortgage  on  real  estate. 


lY.   CONVEYANCE  OF  REAL   ESTATE. 

863.  Decree  for  conveyance. 

864.  Conveyance  obtained  by  fraud  set  aside. 

865.  Decree  reforming  deed. 

In  order  that  a  decree  for  conveyance  shall  operate  as  a  conveyance, 
the  land    itself  must  be  within   the  jurisdiction  of  the  court ;  other- 

1  Means,  Clark  &  Co.  v.  Worthington,  22  Ohio  St.  622. 

^  Or  it  may  be  sold  by  a  master  commissioner,  as  in  case  of  a  sale  on  a  real 
estate  mortgage.     See  Means,  Clark  &  Co.  v.  Worthington,  supra. 

^Courts  of  equity,  in  ordering  a  sale  of  property,  follow  the  rules  regulating 
sales  of  similar  property  on  execution  when  they  sire  applicable.     lb. 


424  JOURNAL    ENTRIES. 

wise,  the  conveyance  must  be  enforced  by  attachment,^  etc.  The  court 
may  enforce  obedience  to  its  oi'der  requiring  a  conveyance  to  be  made, 
by  attachment  for  contempt,  if  it  has  acquired  jurisdiction  over  the 
permn  of  defendant,  whether  the  lands  ordered  to  be  conveyed  lie 
within  or  without  the  state.' 

The  decree  for  conveyance  would  undoubtedly,  iu  a  proper  case, 
operate  as  a  conveyance  without  a  clause  in  it  to  that  effect,  by  virtue 
of  section  5318  ;  but  it  is  better  to  add  to  the  decree  an  order  to  that 
effect. 

Sec.  5399  also  authorizes  the  court  to  order  the  conveyance  to  be 
made  by  a  master  commissioner,  for  which  see  entry  under  that  section. 

863.  Decree  for  conveyance  of  real  estate. 
[Title.'] 

Finding  III.,  yage  99,  or,  if  by  default,  Finding  IV.,  page  100, 
and  coidinue:'] — and  that  the  said  plaiiitiiF  is  entitled  to  the 
sjjeciiic  execution  of  the  contract  in  the  petition  described. 

It  is  therefore  ordered,  adjudged,  and  decreed,  that  upon 
full  payment  being  made  by  the  said  A.  B.,  etc.  [state  specific- 
ally what  the  plaintiff  is  to  do],  the  said  C.  D.  do,  within 

days  from  the  date  of  this  decree,  convey  the  premises  in  the 
petition  described  to  the  said  A.  B.,  by  a  good  and  sufficient 
deed,  with  covenants  of  general  warranty;  *  and,  in  default 
thereof,  that  this  judgment  have  the  operation  and  effect  of 
such  deed,  and  that  the  clerk  have  so  much  thereof  as  will 
show  the  transfer  of  title  put  on  record  in  the  office  of  the 
recorder  of  this  county.^ 

It  is  further  considered  that  the  said  plaintiff  recover  of 
the  said  defendant  his  costs  herein  expended. 

864,  Conveyance  obtained  by  fraud  set  aside. 
[Title.] 

Finding  III,  page  99,  or,  if  by  default.  Fin diyig  IV.,  page 
100,  and  continue  :] — And  the  court  further  find  that  the  de- 
fendant, C.  D.,  did  obtain  from  the  plaintiff  the  deed  of  con- 
veyance in  the  petition  described,  by  fraud  and  misrepresen- 
tation, as  the  plaintiff  has  in  his  petition  alleged. 

» Daniels  v.  Stevens,  19  Ohio,  222. 

^Randall  v.  Prior,  4  Ohio,  424;  followed  and  approved  in  Penu  r.  Hayward, 
14  Ohio  St.  ?,Q2.  'Bv  sec,  4138. 


CONVEYANCE    OF    REAL    ESTATE.  425 

It  is  therefore  adjudged  and  decreed  that  the  said  deed  of 
conveyance,  from  the  said  A.  B.  to  the  said  C.  D.,  be,  and  the 
same  is  hereby,  set  aside,  vacated,  and  declared  to  be  of  no 
force  or  effect  in  laAv  to  affect  the  title  of  the  said  premises, 
or  to  convoy  the  same  to  the  said  defendant. 

And  it  is  further  considered  that  the  i>laintiff  recover  of 
the  said  defendant  his  costs  herein  expended. 

865,  Decree  reforming  deed. 

[ritle.'\ 

This  cause  came  on  this  day  to  be  heard  upon  the  pleadings 
and  proofs,  and  the  court  having  carefully  considered  the 
same,  and  being  fully  advised  in  the  premises,  find  that  the 
deed  referred  to  in  the  petition,  for  tlie  premises  therein  de- 
scribed, was  by  mistake  and  inadvertence  made  to  and  in  the 
individual  name  of  the  said  C.  D.,  instead  of  the  joint  names 
of  the  plaintiff,  A.  B.,  and  said  C.  D. ;  that  the  said  prop- 
was  purchased  with  the  joint  means  of  the  said  plaintiff  and 
said  C.  D.,  and  belongs  to  them  as  late  partners  under  the 
firm  name  of  B.  &  B.,  each  being  entitled  to  the  undivided 
half  thereof;  and  that  the  said  deed  should  properly  so 
show  and  designate  the  same. 

It  is  therefore  adjudged  and  decreed  by  the  court  that 
the  deed  referred  to  in  the  petition,  and  recorded  in  Deed 

Book  Xo. ,  page  , county,  Ohio,  records,  be, 

and  the  same  is  hereby,  corrected  and  reformed,  so  as  to  in- 
vest the  plaintiff,  A.  B.,  with  the  undivided  one-half  of  the 
premises  therein  described ;  and  that  this  decree  have  the 
force  and  effect  of  a  reformation  and  correction  of  said  deed 
as  fully  and  completely  as  though  said  deed  had  been  made 
to  the  said  A.  B.,  and  C.  D.  And  the  clerk  is  directed  to 
have  so  much  of  this  decree,  as  will  show  the  change  of  title, 
pnt  on  record  in  the  oifice  of  the  recorder  of  this  county.^ 

It  is  further  ordered  that  the  costs  of  this  proceeding  be 
paid  by ,  and  execution  is  awarded. 

1  By  sec.  4138. 
28 


426  JOURNAL   ENTRIES. 


V.    FOREIGN  JUDGMENT. 

An  action  may  be  maintained  on  a  judgment  rendered  in  this  state,. 
as  well  as  on  a  judgment  rendered  in  another  state/ 

866.  Judgment  on. 

[Title.'] 

Finding  111.,  jpage  99,  or,  if  by  default,  Finding  IV.,  page 
100,  and  continue-] — 

And  the  court  further  find  that  this  plaintiff  recovered 
a  judgment  against  this  defendant  in  the  Circuit  Court 
of  the  United  States  for  the  Fifth  Circuit  and  District  of 

Louisiana,  on  the  day  of  ,  18 — ,  for  the  sum  of 

$ ;  that  said  judgment  is  a  valid  and  subsisting  judgment, 

and  that  no  proceedings  are  pending  for  its  reversal  or  re- 
trial, and  that  the  amount  therein  found  is  legally  due  from 
this  defendant  to  the  plaintiff. 

It  is  therefore  considered  that  the  plaintiff,  A.  B.,  recover 

from  the  defendant,  C.  D.,  the  said  sum  of  $ ,  and  interest 

from ,  and  also  his  costs  herein  expended. 


VI.   LEASEHOLD  ESTATE. 

867.  Judgment  forfeiting  lease,  and  for  damages. 

868.  Judgment  for  rent,  and  order  for  sale  of. 

The  right  of  re-entry  by  a  landlord,  constituting  a  forfeiture,  for  non- 
payment of  rent,  can  not  exist,  unless  expressly  so  stipulated  in  the 
lease." 

The  judgment  may  include  forfeiture  and  rent,  accruing  subsequent 
to  the  right  of  re-entry,  as  damages.'^ 

If  the  lessor  has  a  lien  on  the  leasehold  premises  for  rent,  the  lien 
may  be  enforced  by  sale,  as  in  other  cases  of  lien.  Sales  of  perma- 
nent leasehold  estates,  renewable  forever,  upon  execution,  or  by  order 

iHeadly  r.  Roby,  G  Ohio,  521. 

^ScottiJ.  Wasson,  Union  Common  Pleas,  1861,  3  W.  L.  M.  148. 

'Campbell  v.  McElevey,  1859,  2  D.  574. 


LEASEHOLD    ESTATE.  427 

or  decree  of  court,  are  governed  by  the  same  laws  that  govern  such 
sales  of  estates  in  fee.' 

8G7.  Judgment  forfeiting  lease,  and  for  damages. 

[Title.'] 

Finding  III.,  page  99,  or,  if  by  defavlt.  Finding  IV.,  page 
100,  and  continue:'] — The  court  further  tiud  tliat  the  phuntift' 
iiiid  the  defendant  executed  the  lease,  in  tlie  ])etition  set  foith, 
and  that  under  it  said  defendant  entered  into  the  possession 
of  the  premises  described  in  the  ]»etition. 

And  the  court  further  find  that  said  defendants  have,  as 
set  up  in  the  petition,  according  to  the  terms  of  said  lease, 
forfeited  all  their  rights  thereunder,  and  that  said  plaintift' 
has  lull  right  to  re-enter  upon  said  premises  discharged  of 
said  lease. 

The  court  further  find  that  there  is  due  the  plaintiff  from 
the  defendant,  for  use  and  occupation  of  said  premises  since 
the  i)hiintifi""s  right  of  re-entry  therein  accrued,  with  interest, 
the  sum  of  dollars. 

It  is  therefore  considered  and  decreed  that  the  plaintifi' re- 
cover from  tlie  defendant  the  possession  of  the  said  jiremises 
free  and  discharged  of  the  lease  mentioned  in  the  petition, 

and  that  he  also  recover  the  sum  of dollars  above  found 

due  as  damages,  and  his   costs  herein   expended,  taxed  at 


It  is  further  ordered  that  a  writ  of  possession  be  issued  to 
put  the  plaintiflt'  in  possession  of  said  premises.'^ 

868.  Jagdmcnt  for  rent,  and  order  for  sate  of  leasehold  premises. 

[Title.] 

Finding  III.,  page  99,  or,  if  bg  default.  Finding  I V.,  page 
100,  and  continue:] — The  court  further  find  that  there  is  due 
to  the  plaintiff"  from  the  defendant  for  ground  rents  to  the 

day  of  ,  with  interest  to  the  first  day  of  this  term, 

the  sum  of dollars,  and  that  said  rents  are  the  first  and 

best  lien  upon  the  leasehold  premises  described  in  the  peti- 
tion, with  the  improvements  thereon. 

It  is  therefore  considered  that  the  plaintiff"  recover  from 

'Sec.  5,374.  'See  note  6,  p.  117. 


428-34  JOURNAL    ENTRIES. 

the  defendant  the  said  sum  of dollars,  together  with  his  costs  in 

this  behalf  expended. 

It  is  further  ordered  and  adjudged  that  unless  said  defendant  shall, 

within  days  from  the  entry  of  this  decree,  pay  or  cause  to  be 

paid,  to  the  plaintiff,  said  sum  so  found  due,  with  interest  'and  costs, 
said  leasehold  premises,  with  the  improvements  thereon  standing,  shall 
be  sold,  and  an  order  therefor  shall  issue  to  the  sheriff  of  this  county 
[or,  to  A.  D.,  a  master  commissioner  of  this  court],  directing  him  to 
appraise,  advertise,  and  sell  said  leasehold  premises  and  improvements, 
as  upon  execution,  and  bring  the  proceeds  into  court  for  further  order. 

The  further  proceedings  on  confirmation  -will  as  in  case  of  foreclosure  of 
mortgage,  if  the  leasehold  estate  sold  is  permanent  and  renewable  forever.  If  the 
leasehold  is  a  chattel  only,  the  sale  will  be  made  as  of  other  personal  property 
on  execution.  But  the  sale  should  be  returned  to  the  court,  and  confirmation 
and  distribution  be  made. 


VII.     MECHANIC'S  LIKN. 

876.  Personal  judgnieiit,  and  decree  for  sale. 

877.  (Sec.  3189.)     Order  to  lease  premises. 

The  holder  of  a  mechanic's  lien  may  obtain  a  judgment  for  the  amount 
of  his  account,  as  in  other  cases  ;^  or  may  have  an  action  and  decree  to 
enforce  his  lien,  as  in  other  cases  of  lien  ;^  or  may  have  his  personal 
judgment  and  degree  for  sale  in  the  same  case,  as  in  other  cases. 

876.     Personal  judgment  and  decree  for  sale. 

[Title.] 

Finding  I.,  page  99,  or,  if  by  defaidt,  Finding  IV.,  page  100,  and 
continue:'] — and  that  there  is  due  to  said  plaintiff,  from  the  defendant, 
CD.,  on  account  of  the  materials  furnished  and  labor  performed,  as 

set  forth  in  the  petition,  the  sum  of  ^ ,  and  that  the  same  is  a  lien 

on  the  premises  described  in  the  petition,  by  reason  of  the  raeclianic's 

lieu  therein  described,  and  recorded  in  book ,  page ,  of  the 

county  records  of  liens;  and  that  said  plaintiff  is  entitled  to  have 

the  said  lien  enforced. 

It  is  therefore  considered  that  the  plaintiff,  A.  B.,  recover  from  the 

defendant,  C.  D.,  the  said  sum  of dollars,  together  with  his  costs 

herein  expended.     And  that  unless  the  said  judgment  is  paid  within 

■ days  from  the  entry  hereof,  an  order  may  issue  to  the  sherifif  of 

county,  Ohio,  commanding  him  to  sell  said  premises  as  upon  execution, 

iSec.:^197. 

2Sec.  320rj,  78  Ohio  L.  78.     Decree  may  be  same  as  No.  876,  omitting  the  per- 

j^  «ral  judgment 


NATURALIZATION.  435 

and  of  his  proceedings  in  the  premises  to  make  due  return 
to  this  court. 

And  as  to  all  questions  of  priority  of  liens,  and  as  to  the 
several  amounts  due  to  the  other  defendants  to  this  suit,  the 
cause  is  continued. 

877.  (SeCo  3189.)     Order  to  lease  premises. 

[Title.-] 

It  appearing  to  the  court  that  the  property  subject  to  the 
mechanic's  lien  in  this  case  will  not  sell  on  execution,  by 
reason  of  a  defective  title,  it  is  ordered*  that  the  sheriff  rent 
or  lease  the  said  premises,  and  collect  the  rents  thereon,  and 
pay  the  same  into  this  court,  until  such  rents  and  issues  shall 
be  sufficient  to  pay  and  satisfy  the  said  lien. 


VllJ.  NATURALIZATION. 
[United  States  Revised  Statutes,  380.] 

878.  (Sec.  2165.)     Admission  after  declaration  of  intention. 

879.  (Sec.  2166.)     Of  discharged  soldier. 

880.  (Sec.  2167.)     Of  party  coming   into  United    States   under  eighteen 

years  of  age. 

881.  (Sec.  2174.)     Of  seaman. 

882.  (Sec.  2165.)     Where  alien  has  borne  hereditary  title,  etc. 

The  record  of  an  alien's  admission  to  citizenship  must  be  made  on 
the  journal  of  the  court. 

878.  (Sec.  2165.)     Admission  after  declaration  of  intention. 

In  the  matter  of  the  citi- 1 
.  zenship  of  A.  B.  | 

This  day  came  A.  B.,  a  native  of  ,  who  declared  his 

intention  of  becoming  a  citizen  of  the  United  States,  accord- 
ing to  law,  before  the court  of ,  on  the day  of 

,  18 —  ;  and  having  proved  good  character  and  residence 

in  the  said  United  States  for  five  years,  and  in  the  State  of 
Ohio  for  one  year,  by  the  oath  of  E.  F.,  took  the  oaths  of  re- 
nunciation and  allegiance  required  by  law,  *  and  was  ad- 
mitted to  citizenship. 


436  JOURNAL    ENTRIES. 

879.  (Sec.  2166.)     Admission  of  discharged  soldier, 
[Title.] 

This  day  came  A.  B.,  a  native  of ,  and  produced  to  the 

court  satisfactory  proof  of  liis  enlistment  in  the  armies  of  the 
United  States,  and  of  his  honorable  discharge  therefrom  ;  and 
proving  good  character  and  residence  of  one  year  in  the 
United  States,  by  the  oath  of  E.  F.,  took  the  oaths  of  renun- 
ciation and  allegiance  required  by  law,  *  and  was  admitted 
to  citizenship. 

880.  (Sec.  2167.)     Of  party  coming  into  the  United  States  under 

eighteen  years  of  age. 

[Title?^ 

This  day  came  A.  B.,  a  native  of  ,  and  made  declara- 
tion according  to  law  of  his  intention  of  becoming  a  citizen 
of  the  United  States,  and  proved  such  bona  fide  intention  for 
two  years  last  past,  as  well  as  good  character  and  residence  in 
the  United  States  for  five  years,  including  three  years  im- 
mediately preceding  his  arrival  at  the  age  of  twenty-one  years, 
and  continuously  thereafter,  by  the  oath  of  E.  F.,  took  the 
oaths  of  renunciation  and  allegiance  required  by  law,  *  and 
was  admitted  to  citizenship. 

881.  (Sec.  2174.)     Admission  of  seaman. 
[Title.'] 

This  day  came  A.  B.,  and  produced  to  the  court  a  certificate 
of  having  declared  his  intention  of  becoming  a  citizen  of  the 

United  States  before  the court  of ,  on  the day 

of  ,  18 — ,  and  it  appearing  that  subsequent  thereto  he 

has  served  for  three  years  on  Ijoard  a  merchant  vessel  of  the 
United  States,  and  now  producing  his  certificate  of  discharge 
from,  and  good  conduct  during,  said  service,  took  the  oaths 
of  renunciation  and  allegiance  required  by  law,  *  and  was 
admitted  to  citizenship. 

If  the  alien  lias  borne  any  hereditary  title  or  order  of  nobility,  he 
must  specially  renounce  the  same. 


REMOVAL    AND    RESERVATION    OF    CASES.  437 

882.  (Sec.  2165,  4th.)      Where  alien  has  borne  hereditary  title. 

[Title.] 

As  in  either  of  the  former  entries  to  *,  and  continue:] — aud 

expressly  renouncing  the  title  [or,  order  of  nobility]  of  

heretofore  borne  by  him,  was  admitted  to  citizenship. 

One  journal  entry  may  be  made  for  a  number  of  cases,  by  ruling 
and  heading  columns  for  names,  etc. 


iX.    REMOVAL  AND  RE.SERVATION  OF  CASES. 

883.  (Sec.  039  Rev.  Stat,  of  U.  S.)     Order  removing   to   Circuit  Court   of 

the  United  States. 

884.  (Sec.  454.)     Order  of  removal  to  the  di.strict  court  of  another  county. 

885.  (Sec.  455.)     Case  reserved  to  supreme  court. 

Long  and  uniform  usage  has  settled  the  practice,  in  this  state,  of 
effecting  the  transfer  of  causes  falling  •vvithin  the  constitutional  juris- 
diction of  the  federal  courts,  in  the  mode  provided  by  the  judiciary  act 
of  Congress  of  178!).'  (1  U.  S.  Stat,  at  Large,  73.)  But  see  Revised 
Statutes,  sees.  639-647,  for  tiie  present  legislation  on  the  subject. 

883.  (Sec.  639,  et  seq.,  Rev.  Stat,  of  U.  S.)  Order  removing 
case  to  Circuit  Court  of  the  United  States. 

[Title.] 

The  defendant  herein  having,  within  the  time  provided  by 
law,  filed  his  petition  for  the  removal  of  this  case  to  the  Cir- 
cuit Court  of  the  United  States,  and  having  at  the  same  time 
ofi:ered  good  and  suflicient  surety,  pursuant  to  statute  ;  there- 
fore, the  court,  finding  that  the  defendant  is  a  resident  of  the 

State  of ,  and  that  he  is  entirled  to  such  removal,  do 

hereby  accept  said  petition  and  bond,  and  order  that  the  said 
cause  be  removed  for  trial  into  the  next  Circuit  Court  of  the 

L^nited  States,  for  the District  of  Ohio,  pursuant  to  the 

statutes  of  the  United  States  ;  and  all  further  proceedings  in 
this  court  in  said  cause  is  hereby  stayed. 

The  above  form,  by  slight  modification,  may  be  used  in  all  cases  of 
removal  to  the  circuit  court. 

1  Hadley  v.  Dunlap,  10  Ohio  St.  1. 


438  JOURNAL   ENTRIES. 

884.  (Sec.  454.)     Order  of  removal  to  the  district  court  of  another 

county. 
It  appearing  that  two  [or  more]  of  the  judges  of  this  court 
are  interested  in  the  event  of  tliis  cause,  it  is  therefore  or- 
dered that  the  said  cause  be  removed,  for  trial  and  judgment, 
to  the  district  court  held  in  the  county  of . 

885.  (Sec.  455.)     Case  reserved  to  supreme  court} 
ITitle.l 

It  appearing  to  the  court  that  important  [or.,  difficult]  ques- 
tions are  involved  in  this  case,  on  motion  of  the ,  it  is  or- 
dered that  the  said  case  he,  and  it  hereby  is,  reserved,  and  or- 
dered to  be  sent,  to  the  supreme  court  of  the  state,  for  its 
decision  on  the  same. 

[Ordered,  on  motion  of  the ,  that  copies  of  the  papers 

in  this  case  be  sent  to  the  supreme  court,  instead  of  the  orig- 
inals.] 

A  similar  entry  may  be  made  in  a  case  where  the  judges  of  the  dis- 
trict court  are  equally  divided  in  opinion. 


X.   SPECIFIC  PERFORMANCE. 

A  decree  for  specific  performance  on  the  part  of  the  defendant,  with- 
out finding  or  requiring  performance  on  the  part  of  the  plaintiff  of  his 
part  of  the  agreement,  is  erroneous.'^ 

A  specific  performance  may  be  decreed,  though  the  decree  is  for  the 
payment  of  money  only,  when  the  remedy  at  law  is  doubtful  and  diffi- 
cult.' 

886.  Decree  for. 

[Title.'] 

Finding  III.,  -page  99,  or,  if  by  default,  Finding  IV.,  'page 
100,  and  continue:] — and  that  the  agreements  in  the  said  pe- 

'  See  Rule  IX.  of  the  supreme  court. 
'  Owens  V.  Hall,  13  Ohio  St.  571. 
3Rees».  Smith,  1  Ohio,  124. 


stockholder's  liability.  439 

tition  mentioned,  and  duly  proven  in  this  action,  can  be  fully 
performed  and  executed,  and  that  the  plaintiff  is  entitled 
thereto. 

It  is  therefore  considered  and  decreed  that  the  plaintiff,  A. 
B.  do  [set  forth  rohat  he  is  to  /-/o],  and  that  the  defendant,  C. 
D.,  do  [set  forth  lohat  he  is  to  do^. 

It  is  further  ordered  that  the recover  from  the  

his  costs  herein  expended. 


XI.     STOCKHOLDER'S  LIABILITY. 

887a.  (Sec.  32G0.)  Judf/ment  enforcing  individual  liability  of 
stockholders. 

[ime.] 

If  the  matter  is  /ward  on  report  of  a  master,  make  Entry  No. 
151,  and  continue  :~\ — 

And  upon  said  report,  and  the  testimony  offered,  the  court 

find  that  the  amount  of  the  indebtedness  of  the  said  

Company,  a  cor})oration  under  the  laws  of  Ohio,  over  and 

above  its  assets,  is dollars,  which  includes  a  counsel  fee 

of  $ to  J.  W,,  and  the  master's  fee  herein  of  $ ,  which 

sums  the  court  allow  in  favor  of  said  counsel  and  said  master 
commissioner. 

And  the  court  further  find,  from  the  evidence  and  report 
of  said  master  commissioner,  that  each  of  the  said  defend- 
ants hereinafter  named  were,  at  the  time  said  several  liabili- 
ties accrued,  stockholders  of  the  said Company  in  the 

amounts  herein  found  and  set  opposite  their  names  respect- 
ively, in  the  column  of  "  stocks,"  in  the  schedule  set  out 
below. 

And  the  court  further  find,  from  the  report  above  named 
and  the  evidence,  that  said  eor})oration  is  insolvent,  and  that 
to  pay  the  liabilities  aforesaid  it  will  require  an  assessment  on 
the  amount  of  stock  held  by  each  and  all  of  the  defendants, 
stockholders,  who  are  solvent  and  within  the  jurisdiction  of 
the  court,  of  the  sums  hereby  found  and  set  opposite  their 


440  JOURNAL    ENTRIES. 

names  respectively,  in  the  columns  of  "judgment,"  in  the 
following  schedule,  viz. : 

JiTame.  Stock.  Judgment. 

W.  M.  $5,425.00  $542.50 

etc.  etc.  etc. 

It  is  therefore  ordered  that  each  of  the  stockholders,  de- 
fendants, named  in  the  above  schedule,  pay  on  or  before  the 

day  of ,  18 — ,  into  the  hands  of  J.  B.,  who  is  hereby 

appointed  a  receiver  for  the  purpose  of  receiving,  collecting, 
and  distributing  the  money  to  be  paid  in  pursuance  of  this 
order,  the  sums  above  specified,  set  opposite  his  name  in  the 
judgment  column  of  the  schedule,  together  with  interest  from 
the day  of ,  18 —  ;  and,  in  default  thereof,  that  ex- 
ecution issue  therefor. 

And  it  is  further  ordered  by  the  court  that  out  of  the 
money  so  to  be  collected  the  receiver  pay,  first,  the  costs  of 
this  case,  including  the  fees  to  the  attorney  and  master  com- 
missioner in  full,  and  that  he  pay  then  the  money  received 
by  him  to  the  several  parties  named  below,  pro  rata,  accord- 
ing to  the  sums  set  opposite  their  names  respectively,  and  to 
which  they  are  hereby  found  to  be  entitled,  to  wit : 

■    1st.  To  D.  E.  the  sum  of  $ . 

2do   To  F.  G.  the  sum  of  $— . 
etc.  etc. 


XII.     VENDOR'S  LIEN. 

887.  Decree  for  sale  on. 

[Title.] 

Finding  III.,  page  99,  or,  if  by  default,  Finding  IV.,  page 
100,  and  co7it  in  lie:] — The  court  also  find  that  there  is  due 
from  this  defendant  to  said  plaintiff,  with  interest  to  the  first 

day  of  this  term,  the  sum  of  dollars,  being  the  balance 

of  unpaid  purchase-money  upon  the  premises  described  in 
the  petition,  to  wit  [describe],  and  that  said  plaintiff'  has  a 
vendor's  lien  thereon  for  the  same,  which  is  the  first  and  best 
lien  on  said  premises  ;  and  that  he  is  entitled  to  have  the 
same  sold  for  the  payment  and  satisfaction  of  said  lien.  * 


VESTING    PROPERTY    IN    TRUSTEES.  441 

It  is  therefore  ordered,  adjudged,  and  decreed,  that  unless 

said  C.  D.,  or  some  one  in  liis  behalf,  shall  within days 

from  the  entry  of  this  decree  pay  to  the  said  A.  B.  or  his  at- 
torney the  said  sum  of  ^ ,  with  interest  from  the  first  day 

of  this  term,  and  to  the  clerk  of  tins  court  the  costs  of  these 
proceedings,  said  premises  shall  be  sold  as  upon  execution, 

and  an  order  shall  issue  therefor  to  the  sheriff  of county ; 

and  tliat  said  sheriff  bring  the  proceeds  of  said  sale  into  court 
for  further  order. 

The  confirmation  and  distribution  maybe  in  the  same  form  as  in  case 
of  sale  on  mortgage. 


XIII.    VESTING  PROPEirrY   IX  TRrSTEES. 

It  is  only  atempted  here  to  give  a  geueral  form  for  a  decree  vesting 
property  in  trustees  for  the  use  and  benefit  of  another.  Every  decree 
will  be  controlled  by  the  circumstances  of  the  particular  case. 

888.  Decree  vesting  ■property  in  trustees. 

[Title.] 

Finding  III.,  page  99,  or,  if  by  default,  Finding  IV.,  page 
100,  and  corUinue ;] — 

Therefore  it  is  ordered,  adjudged,  and  decreed  by  the  court 
that  the  real  estate  and  })ersonal  property  mentioned  in  the 
})etition  be  vested  in  a  trustee,  to  be  by  him  held,  controlled, 
and  managed  forthebenefit  of  said  plaintiff  during  her  natural 
life,  and  after  her  death  to  be  paid  over  and  conveyed  to  her 
children.  And  it  is  ordered  and  decreed  by  the  court  that 
W.  J.  C.  be,  and  he  is  hereby,  appointed  as  the  trustee  for  said 

property,  on  his  giving  an  undertaking  in  the  sum  of  $ , 

with  sureties  to  the  approval  of  the  court,  conditioned  for  the 
faithful  discharge  of  his  duties  as  such.  And  the  said  de- 
fendant is  hereby  ordered  to  execute  and  deliver  to  said  W. 
J.  C,  as  trustee  as  aforesaid,  within  ten  days  from  this  date, 
a  deed  in  due  form  of  law,  conveying  to  him  all  of  said  real 
estate  in  trust  for  the  uses  and  purposes  mentioned  in  this 
decree  ;  and  to  deliver  to  him  all  of  the  personal  property 
mentioned  in  said  petition.     And  in  default  of  such  deed  it 


442  JOURNAL    ENTRIES. 

is  ordered  that  this  decree  stand  and  operate,  and  have  the 
force  and  effect  of  such  deed. 

And  it  is  ordered  that  said  trustee,  on  giving  the  under- 
taking aforesaid,  do  take  immediate  possession  of  all  of  said 
property;  that  he  rent  said  real  estate  for  the  best  price  he 
can  obtain  therefor,  and  that  he  control  and  manage  the  same 
for  the  interest  of  the  said  A.  B.,  and  pay  over  to  her  from 
time  to  time  the  said  rents,  after  payment  of  taxes,  repairs, 
and  other  necessary  expenses.  And  that  he  sell  said  personal 
property,  and  invest  the  moneys  in  good  mortgage  securities, 
and  pay  the  interest  arising  from  such  investment  from  time 
to  time  to  said  plaintiff,     [State  any  other  special  powers.'] 

And  it  is  ordered  that  the  costs  of  this  case  be  paid  by  the 
,  and  in  default  execution  is  awarded. 


XIV.   WILLS. 

889.  (Sec.  5935.)     Order  that  will  be  admitted  to  probate. 

890.  (Sec.  5935.)     Order  refusing  to  admit  will  to  probate. 

In  case  of  the  refusal  to  admit  a  will  to  probate,  an  appeal  lies  to  the 
court  of  common  pleas,  by  sec.  5934.  On  trial  in  the  common  pleas  an 
order  may  be  made  allowing  or  refusing  the  admission  of  the  will  to 
probate,  as  follows : 


.  (Sec.  5935.)  Order,  on  ajipeal,  that  will  he  admitted  to  -pro- 
hate. 

[rdlc.] 

This  cause  came  on  this  day  to  be  heard  on  appeal  from 
the  probate  court  of  this  county,  and  was  submitted  to  the 
court  upon  the  certified  copy  of  the  order  made  by  the  said 
probate  court  rejecting  the  will  of  A.  B.,  which  was  offered 
for  probate  therein,  and  upon  a  certified  copy  of  said  will, 
and  the  testimony  taken  in  the  case.  * 

And  thereupon  the  court,  l)cing  fully  advised  in  the  prem- 
ises, find  that  the  will  aforesaid  was  duly  attested  and  exe- 
cuted, and  that  the  testator,  at  the  time  of  executing  the 
same,  was  of  full  age  and  of  sound  mind  and  memory,  and 


WILLS,  443 

not  under  any  restraint,  and  it  is  therefore  ordered  and  ad- 
judged that  said  will  be  admitted  to  probate  in  said  court, 
and  that  this  order,  together  with  the  will  and  testimony,  be 
certified  by  the  clerk  of  this  court  to  the  probate  court  afore- 
said. 

It  is  further  ordered  that  the pay  the  costs  of  this 

proceeding. 

890.  (Sec.  5935.)     Order  refusing  to  admit  will  to  probate, 

[Title.'] 

As  in  last  to  *,  and  continue .-] — 

And  thereupon  the  court  find  that  [name  defect\  and  there- 
fore refuse  to  admit  said  will  to  probate. 

It  is  further  ordered  that  the pay  the   costs  of  this 

proceeding. 


444  JOUKNAL   ENTRIES. 


XVI.   OATHS. 

I.  For  a  jury. 
.  II.   For  a  witness. 

III.  For  an  interpreter. 

IV.  For  a  referee. 
V.  Affirmation. 

I.    OATH   10^   JURY   m   CIVIL    ACm<r» 

ifou,  and  each  of  you,  do  solemnly  swe-ar,  in  th«,  j'resenco 
of  Almighty  God,  that  you  will  well  and  truly  try  the  issue 
joined  in  the  cause,  wherein  A.  B.  is  plaintiff  and  C.  1).  is 
defendant,  and  a  true  verdict  render  according  to  the  law  and 
evidence. 

II.    OATH    FOR   AVITNESS. 

[Sec.  5260.] 

You  do  solemnly  swear,  in  the  presence  of  Almighty  G-od, 
that  the  testimony  you  are  about  to  give  the  court  shall  be 
the  truth,  the  whole  truth,  and  nothing  but  the  truth. 


III.    OATH    FOR    INTERPRETER. 

You  do  solemnly  swear,  in  the  presence  of  Almighty 
God,  that  you  will  faithfully  and  truly  interpret  between 
the  court  and  counsel  and  the  witness  in  the  case  now  on 
hearing. 

IV.    OATH    FOR   REFEREE. 

[Sec.  5217.] 

You  do  solemnly  swear,  in  the  presence  of  Almighty  God^ 
that  yon  will  well  and  faithfully  hear  and  examine  the  cause 


OATHS.  445 

referred  to  you,  wherein  A.  B.  is  plaintiff,  and  C.  D.  defend- 
ant, and  make  a  just  and  true  report  therein^  according  to  the 
best  of  your  understanding. 


V.   AFFIRMATION. 

[See  sec.  1.] 

Yo'a  do  solemnly  and  sincerely  affirm ^  etc.  [as  in  any  oj  the 
forms  above]. 

And  this  you  do  under  the  pains  and  penalties  of  perjury. 


44^  JOURNAL   ENTRIES,  [SEC.  7106- 


JOURKAL  ENTRIES 


UNDER  THE 


CODE  OF  CRIMIML  PROCEDURE  OF  OHIO„ 


The  first  entry,  after  opening  the  journal  for  the  proceedings  of  the 
criminal  court/  is  upon  the  return  of  the  venire  facias  for  the  grand 
jury.  The  form  is  given  under  Chaj^ter  III.,  j'O^f-  Usually,  the  next 
entry  is  upon  the  return  of  the  ve)iire  facias  for  the  petit  jury,  and  the 
forms  will  be  the  same  as  under  the  Code  of  Civil  Procedure. 

The  title  of  criminal  cases,  -where  the  state  prosecutes,  is — 

The  State  of  Ohio  ] 

vs.  y 

CD.  J 

In  all  journal  entries  under  the  Criminal  Code,  the  crime  with  which 
the  defendant  is  charged,  or  for  which  he  has  been  indicted,  should  be 
set  out  after  the  title. 

^  In  the  same  form  as  on  page  7. 


-7112o]  PROCEEDINGS   TO    PREVENT    CRIME.  447 


PART  FOURTH, 

PENAL. 

TITLE  IT. 

CRIMINAL    PROCEDURE. 


CHAPTER  I. 

PROCEEDINGS  TO  PliEVENT  CRIME. 

Peace  warrant — 

891.  (Sec.  7112.)     Discharge  on  failure  of  prosecution. 

892.  (Sec.  7113.)     Discharge  from  recognizance,  on  hearing  in   common 

pleas. 

893.  (Sec.  7113.)     Order,  on  liearing,  tliat  party  enter  intosecurity  to  keep 

the  peace. 

894.  (Sec.  711G.)     Person  convicted  of  misdemeanor  ordered  to  enter  into 

recognizance  to  keep  the  peace. 

Prize  fights — 

896.  (Sec.  7II7.)     Order  for  recognizance  that  party  will  not  engage  in. 

897.  (Sec.  7117.)     Order  for  discharge  of  accused  after  one  month. 

Search  warrant — 

898.  (Sec.  7126.)     Order  that  certain  things  taken  be  destroyed. 

Peace  warrant — 

891.  (Sec.  7112.)     Discharge,  on  failure  of  prosecution. 

[Title.']     Charge  of . 

The  defendant  now  coming,  in  accordance  with  the  condi- 
tion of  his  recognizance,  entered  into  before  J.  M.,  a  justice 

of  the  peace,  and  filed  with  the  clerk  of  this  court,  and  the 
29 


448  JOURNAL    ENTRIES.  [SEC.    7113- 

said  complainant  failing  to  appear,  to  prosecute  his  said  com- 
plaint, the  said  C.  D.  is  hereby  discharged  from  his  said  re- 
cognizance. 

It  is  further  ordered  that  the  costs  of  this  proceeding  be 
paid  by  the  said  A.  B.,  and  execution  is  awarded  therefor. 

892.  (Sec.  7113.)     Discharge  from  recognizance^  on  hearing  in 

common  2)leas. 

[Title.]     Charge  of . 

Now  comes  the  prosecuting  attorney,  on  behalf  of  the 
State  of  Ohio,  and  also  come  A.  B.,  the  complainant,  and  C. 
D,,-  the  defendant,  in  accordance  with  the  condition  of  the 
recognizance  entered  into  by  said  defendant,  before  E.  S.,  a 
justice  of  the  peace,  and  tiled  in  the  office  of  the  clerk  of 
this  court.  And  thereupon,  upon  full  consideration  of  the 
evidence,  *  it  is  ordered  that  said  defendant  be  discharged 
from  his  said  recognizance. 

It  is  further  ordered  that  the  costs  of  this  prosecution  be 
paid  by  the  complainant,  A.  B. ;  and  execution  is  awarded 
therefor. 

893.  (Sec.  7113.)      Order,  on  hearing,  that  party  enter  into  se- 

curity to  keep  the  peace. 

[Title.]     Charge  of . 

As  in  last  to  *,  and  continue-?^ — it  is  ordered  and  adjudged 
that  the  said  C.  D.  do  forthwith  enter  into  recognizance  in 

the  sum  of dollars,  with  good  and  sufficient  security,  to 

be  of  good  behavior  and  to  keep  the  peace  with  all  persons, 
and  particularly  with  the  said  A.  B.,  for  the  term  of  one  year 
[or  other  time]  next  hereafter,  [and  in  default  of  such  security 
that  he  be  committed  to  the  jail  of  this  county,  there  to  re- 
main until  he  shall  comply  with  this  order,  or  be  otherwise 
legally  discliarged^]  ;  and  that  he  pay  the  costs  of  this  prose- 
cution, for  which  execution  is  awarded. 

^  This  clause,  by  sec.  7114,  is  put  in  the  order,  for  convenience,  when  there  is 
a  probability  that  the  bond  will  not  be  given.  If  bond  is  immediately  given, 
it  should  be  omitted. 


-7117.]  PROCEEDINGS    TO    PREVENT    CRIMEo  449 

If  the  security  is  at  once  given,  add ;] — 

And  thereupon  came  the  said  defendant,  and  with  J.  H. 
as  his  surety,  approved  by  the  court,  entered  into  recogni- 
zance, as  above  required. 

If  recognizance  be  given  ut  a  subsequent  day,  use  Entry  No.  899. 

By  sec.  7116  any  person  convicted  of  a  misdemeanor  may  be  ordered 
to  give  security  to  keep  the  peace  for  any  term  not  exceeding  two  years. 
The  order  may  be  added  to  the  sentence  of  the  court,  or  a  separate  en- 
try may  be  made  as  fjllows  : 

894.  (See.  7116.)     Person  convicted  of  misdemeanor  ordered  to 

Oder  into  recognizance  to  keep  the  peace. 

[Tille:\     Charge  of . 

The  said  C.  I).,  liaving  lieretoforo  been  convicted  of  a  mis- 
demeanor in  this  court,  it  is  now  ordered  and  adjudged  that 

he  do  forthwitli  enter  into  a  recognizance  in  the  sum  of 

dollars,  with  good  and  sufficient  security,  to  keep  the  peace 

and  1)0  of  good  boliavior  for months  next  hereafter;  and 

that  he  stand  committed  to  the  jail  of  this  county,  there  to 
remain  until  he  shall  comply  with  this  order  or  be  otherwise 
legally  discharged. 

If  recognizance  be  at  once  given,  add  clause  as  after  sec.  893.  If 
subse(]uently  given,  use  Entry  Xo.  899  or  No.  900. 

Prize  fights — 

896.  (Sec.  7117.)  Order  for  recognizance  that  party  will  not  en- 
gage in  prize  fight. 

[Title.] 

This  day  came  the  prosecuting  attorney,  on  behalf  of  the 
State  of  Ohio,  and  the  defendant,  C.  D..  being  brought  be- 
fore the  Hon.  R.  A.  J.,  one  of  the  judges  of  the  Court  of 

Common  Pleas  for Countv,  Ohio.bv  the  sheriff,  charo-ed 

with  being  about  to  engage  as  principal  in  a  premeditated 
fight  or  contention,  commonly  known  as  a  prize  fight  [or, 
ortherwise  as  provided  for  in  sec.  7117]  ;   thereupon  the  case 


450  JOURNAL    ENTRIES.  [SEC.  7117- 

came  on  for  hearing  on  the  affidavit  of  A.  B,  and  the  testi- 
mony. And  finding  the  comphiint  to  be  true,  it  was  ordered 
by  said  judge  that  the  said  C.  D.  should  forthwith  enter  into 
recognizance  in  the  sum  of dollars,  with  good  and  suffi- 
cient security,  that  he  would  not  engage  in  any  such  fight  oi 
contention  within  one  year  in  this  state  or  elsewhere;  and,  in 
default  of  such  recognizance,  that  he  be  committed  to  the 
jail  of  this  county,  there  to  remain  until  he  should  comply 
with  such  order  or  be  legally  discharged. 

If  the  recognizance  is  entered  into  at  once,  the  last  clause  may  be 
omitted,  and  record  of  recognizance  added,  as  after  Entry  No.  893.  If 
given  subsequently,  use  Entry  No.  899. 

897  (Sec.  7117.)  Order  for  discharge  of  accused  after  one 
month. 

[Title.'] 

And  now,  upon  application  to  the  Hon. ,  one  of  the 

judges  of  the  Court  of  Common  Pleas  for County,  Ohio, 

and  it  appearing  that  the  defendant,  C.  D.,  is  unable  to  give  the 
recognizance  heretofore  ordered,  and  he  having  given  proof, 
by  his  own  affidavit  and  other  evidence,  that  he  will  never 
engage  in  such  fight  or  contention  as  charged  in  the  com- 
plaint against  him,  and  having  entered  into  his  own  recogni- 
zance in  the  sum  of dollars,  conditioned  that  he  will  not 

engage  in  any  such  fight  or  contention  within  one  year  in 
this  state  or  elsewhere,  he  is  discharged  from  his  confine- 
ment. 

Search  warrant — 

AVhen  any  things  are  destroyed  or  burned,  under  direction  of  the 
court,  by  section  7126,  either  a  journal  eutry  ordering  the  same 
should  be  made,  or  some  report  of  the  action  made  to  the  court,  so  as  to 
show  on  the  record  the  fact  that  it  was  done  under  the  direction  of  the 
court.     Entry  may  be  made  as  follows  : 

898.  (Sec.  7126.)     Order  that  certain  things  taken  on  search  war- 
rant be  destroyed. 
{Title.'] 
It  is  ordered  by  the  court  that  the  [specifj  things  to  he  de- 


-7163,]  ARREST,    EXAMINATION,    ETC.  451 

stroye(f],  heretofore  found  in  possession  of  the  defendant,  C. 
D.,  and  seized  hy  virtue  of  a  search  warrant  issued  by  R. 
M.,  justice  of  the  peace,  be  burned  by  the  sheriff  of  this 
court. 


CHAPTER  II. 

ARREST,  EXAMINATION,  BAIL,  AND  COMMITMENT. 

Bah,— 

899.  (Sec.  7164.)     Record  of  recognizance  taken  by  the  court. 

900.  (Sec.  7104.)     Record  of  one's  own  recognizance  taken  by  the  court, 

901.  Order  for  new  recognizance  at  end  of  term. 

902.  (Sec.  7174.)     Recognizance  fixed,  in  case  of  felony. 

E.XAMixixG  Court — 

903.  (Sec.  7165.)  Prisoner  discharged  by. 

904.  (Sec.  7165.)  Prisoner  admitted  to  bail  by. 

905.  (Sec.  7165.)  Prisoner  remanded  by. 

906.  (Sec.  7166.)  Finding  by,  that  jjrisoner  was  not  insane 

907.  (Sec.  7166.)  Finding  ])y,  that  prisoner  wa.s  insane. 

908.  (Sec.  7168.)  Order  fixing  recognizance  by. 

Rkc()c.mzei»  prisoner — 

909.  (Sec.  7177.)     Delivered,  and  committed  to  jail. 

910.  (Sec.  7177.)     Delivered,  and  new  recognizance  taken, 

911.  (Sec.  7178.)     Delivered  in  vacation,  etc.,  committed. 

912.  (Sec.  7178.)     Delivered  in  vacation  and  recognized. 

913.  (Sec.  7180.)     Recognizance  forfeited. 

914.  Forfeiture  opened  up. 

Bail — 

A  recognizance  in  a  criminal  case,  conditioned  "that  the  prisoner 
appear  on  tlie  first  day  of  the  next  term,  and  thereafter  from  day  to 
day,  and  abide  the  judgment  of  the  court,  and  not  depart  the  court 
without  leave,"  is  binding  during  the  first  term  of  the  court  only ;  and 
if  the  court  adjourns  without  making  any  order,  the  sureties  are  ex- 
onerated from  their  recognizance.' 

1  Swank  V.  The  State,  8  Ohio  St.  429. 


452  JOURNAL    ENTRIES.  [SEC.   7164- 

During  the  appearance  term  a  new  recognizance  should  be  taken,  or 
the  prisoner  be  committed  to  jail,'  if  it  is  found  necessary  to  continue 
his  case  to  the  next  term. 

Such  recognizance  may  be  taken  either  at  the  time  of  continuance, 
or  at  any  day  thereafter  during  the  term.  The  prisoner  may  be  called 
for  that  purpose  after  the  continuance  of  the  case,  and  if  he  fails  to 
appear,  his  recognizance  may  be  forfeited.^  If  he  comes  into  court, 
and  o-ives  bond,  without  compulsion,  an  entry  may  be  made  in  the 
same  form  as  Entry  No.  899,  only  saying,  "entered  into  a  new  re- 
cognizance," etc.  Otherwise,  the  court  should  order  as  in  Entry  No. 
901. 

Sec.  7164  of  the  Revised  Statutes  provides  the  method  of  recording- 
a  recognizance  as  follows :  If  taken  by  the  court,  by  an  entry  on  the 
journal.  If  received  by  the  clerk,  which  probably  includes  all  taken 
out  of  court,  whether  by  a  judge,  a  magistrate,  a  sheriff,  or  an  exam- 
iniuo-  court,  by  an  entry  on  the  appearance  docket  of  the  court.  But 
in  making  up  the  complete  record  the  prosecuting  attorney  or  the  ac- 
cused may  require  that  they  be  recorded  in  full. 

899o  (Sec.  7164.)     Record  of  recognizance  taken  by  the  court. 

{Title:]     Charge  of . 

This  day  came  the  defendant,  and  with  J.  H.  as  his  surety, 
entered  into  recognizance  before  the  court  in   the  sum  of 

■ dollars,  conditioned  for  his  appearance  [state  the  time],  to 

answer  said  charge  [or  name  any  ot/ier  condition  of  the  bond]. 

900.  (Sec.  7164.)     Record  of  one's  own  recognizance  taken  by  the 

court. 

[TitU:]     Charge  of . 

This  day  came  the  defendant,  and  entered  into  his  own  l-e- 
cognizance,  before  the  court,  in  the  sum  of dollars,  con- 
ditioned for  his  appearance  [iiame  time],  to  answer  said 
charge  [or  name  any  other  condition  of  the  bond\ 

901.  Order  for  new  recognizance  at  end  of  term.^ 
[Title.]     Charge  of . 

It  being  necessary  to  continue  this  case  to  the  next  term 
of  this  court,  it  is  ordered  that  the  said  defendant  do  forth- 


1  Swank  v.  State,  ?,  Ohio  St.  429. 
=  See  supra. 


-7165.]  ARREST,    EXAMINATION,    ETC.  453 

with  enter  into  a  new  recognizance  in  the  amount  of  the 
present  one,  for  his  appearance  at  the  next  term  of  this  court, 
to  answer  the  charge  against  him;  and  in  default  thereof, 
tliat  lie  be  committed  to  the  jail  of  this  county. 

If  the  defendaut  appears  in  accordance  with  the  above  order,  and 
gives  bond,  w.ikc  the  record  of  it  as  in  Entry  Xo.  899.  If  he  fails  to 
appear,  liis  recognizance  should  he  forfeited,  as  in  Entry  No.  91.3. 

902.  (Sec.  7174.)     liecognizance  fixed  in  case  of  felony. 

\^Title.^     Itidictment  for  felony. 

The  defendant  lioroin  not  havino-  been  arrested  or  recosr- 
ni/ed  upon  the  said  indictment,  it  is  ordered  that  the  sheriff 
charged  with  the  duty  of  ari-esting  said  defendant  may  rec- 
ognize him,  as  provided  by  law,  in  the  sum  of dollars. 

Examining  court — 

The  code  docs  not  make  very  definite  provisions  for  the  entrv  of  any 
order  made  by  the  examining  court  {provided  for  in  sections  7165-8,  ex- 
cept the  order  fixing  the  amount  in  which  the  prisoner  mav  be  recog- 
nized, in  section  71()8.  But  all  orders  should  probably  be  entered  by 
the  clerk  on  the  records  of  the  common  j)leas  court,  setting  out  the  cir- 
cumstances of  each  case.  These  sections  do  not  apply  to  j)ersons  com- 
mitted on  indictment.^ 

903.  (Sec.  7165.)     Prisoner  discharr/ed  by  examining  court. 

[Title.']     Charge  of . 

This  day  the  defendant  appeared  before  the  Hon.  J.  M., 
probate  judge"  of  this  county,  the  clerk,  and  the  prosecuting 
attorney,  who,  upon  notice  given  by  the  sheriff  [or,  jailer]  ac- 
cording to  the  statute  in  such  cases  made  and  provided,  at- 
tended as  an  examining  court  for  this  purpose  at  the  court- 
house in  the  city  of .  And  the  said  judge,  upon  full  ex- 
amination of  witnesses  and  consideration  had,  finding  *  no 
probable  cause  for  holding  the  said  C.  D.  to  answer,  thereupon 
discharged  him  from  imprisonment. 

>  Kendle  v.  Tarbell,  24  Ohio  St.  19G. 

-  By  sec.   7171,   the  judge  of  the  court  of  criminal  jurisdiction  has  concur- 
rent jurisdiction  with  the  probate  judge. 


454  JOURNAL   ENTRIES.  [SEC.  7165- 

904.  (Sec.  7165.)     Prisoner  admitted  to  hail  by  examining  court. 

[Title.]     Charge  of . 

As  in  last  entity  to  *,  and  continue. 'I — probable  cause  for 
bolding  the  said  C.  D.  to  answer,  ordered  that  upon  entering 

into  recognizance  in  the  sum  of dollars,  with  good  and 

sufficient  security,  conditioned  for  his  appearance  forthwith  ' 
at  [or,  betore  the  next  term  *  of]  the  court  of  common  pleas 
of  this  county,  to  answer  said  charge,  he  be  discharged  from 
confinement ;  otherwise  that  he  be  remanded  to  jail.  [X] 

Also  the  following  named  witnesses  were  recognized '  in 
the  several  amounts,  and  with  the  sureties  severally  set  oppo- 
site their  names,  for  their  appearance  before  the  said  court 
forthwith  [or,  at  the  next  term  thereof],  viz. : 


Name  of  witness. 

Amount  of  recog. 

Suret-s 

L.  R. 

$300. 

S.  T 

etc. 

etc. 

etc. 

905.  (Sec.  7165.)     Prisoner  remanded  to  jail  by  exaynining  court. 
[Title.]     Charge  of . 

As  in   No.  903    to   *,  ayid  continue:] — probable    cause    for 
holding  the  said  C.  D.  to  answer,  remanded  him  to  jail. 
[Conclude  as  from  [|],  in  last  entry.] 

906.  (Sec.  7166.)     Finding  by  examining  court  that  prisoner  was 

not  insane,  etc. 

[  Title.]     Charge  of . 

As  in  Entry  No.  903  to  *,  and  continue :] — that  the  said  C. 
D.  was  not  insane  when  he  committed  the  oflense  charged 
against  him  [or  find  according  to  facts],  remanded  him  to  the 
custody  of  the  sheriff". 

907.  Sec.  7166.)     Finding  of  insanity  by  examining  court. 
[Title.]     Charge  of—! 

As  in  Entry  No.  903  to  *,  and  continue :] — that  the  said 
C.  D.  was,  when  he  committed  the  offense  charged  and  still 

1  By  sec.  7167. 


-7177.J  AKllEST,    EXAMINATION,    ETC.  455 

is,  insane  [or  specify  other  fact],  ordered  that  he  be  committed 
to asyhim. 

008  (Sec.  7108.)     Order  fixing  recognizance  hy  examining  court. 

ITille.]     Cliarge  of  — . 

The  defendant,  C.  D.,  having  failed  to  give  the  security 
heretofore  ordered  l)y  tlic  examining  court  for  his  discharge 
from  confinement,  tlie  said  court  ordered  that  tlio  amount  of 
such  recognizance   for  liis   discliarge,  at  any  time  hereafter, 

he  fixed  at  tlic  sum  of  ,  with  security,  to  the  approval 

of  any  judge  discharging  him. 

For  entry  under  sec.  7174,  see  Entry  No.  902. 

Recognized  pkisoneu — 

909.  (Sec.  7177.)     DcUrerctI  and  committed  to  jail. 
[Title..']     Indictment  for . 

This  day  came  E.  X.,  tlie  surety  for  the  defendant  herein, 
and  delivered  up  the  hody  of  the  said  defendant  in  open 
court,  and  asked  to  be  discharged  from  further  responsibility 
on  his  recognizance. 

And  thereupon  the  court  ordered  that  the  said  suretv  be 
discharged  from  his  said  obligation.*  and  ordered  the  said 
C.  D.  into  the  custody  of  the  sheritt". 

910.  (Sec.  7177.)     Delivered,  and  new  recognizance  taken. 
[Title.]     Indictment  for -, 

As  in  last  to  *,  and  continue  :] — and  fixed  the  bond  of  the 
said  defendant,  to  be  conditioned  as  the  former,  at  S-— , 

And  thereupon  the  said  C.  D.,  with  J.  II.  as  his  surety,  en- 
tered into  a  new  recognizance,  as  above,  conditioned  for  his 
appearance  [stedc  time]  to  answer  said  charge. 

When  tlic  delivery  is  made  in  vacation,  as  provided  in  section  7178, 
an  entry  at  chambers  should  be  made,  so  as  to  keep  a  full  record  of 
the  case,  as  follows  : 


456  JOURNAL   ENTRIES.  [SEC.  7178- 

911.  (Sec.  7178.)     Prisoner  delivered  in  vacation,  and  committed. 

In  Chambers,  July  15,  18 — , 

Before  the  Hon.  R.  W.,  Judge  of  the  Common  Pleas  Court 
of  County,  Ohio. 

\_Title.'\     Indictment  for . 

This  day  came  E.  K.,  the  surety  for  the  defendant  herein, 
before  the  Hon.  R.  W.,  and  delivered  up  the  body  of  the 
said  C.  D.,  in  the  court-house  of  the  said  county,  and  asked 
to  be  discharged  from  further  responsibility  on  his  recogni- 
zance. 

And  thereupon  the  said  E.  K.  was  discharged  from  his  said 
obligation,  and  the  said  C.  D.  *  was  committed  to  the  jail  of 
the  county. 

(Signed)  R.,  W.,  Judge. 

912.  (Sec.  7178.)     Prisoner   delivered   in    vacation,  and    recog- 

nized. 

\_Title.']     Indictment  for . 

^5  in  last  to  *,  and.  continue:'] — with  J.  II.  as  his  surety,  en- 
tered into  a  new  recognizance,  in  the  sum  of  $ ,  condi- 
tioned as  the  former,  for  his  appearance  at  the  next  term  of 
the  court  of  common  pleas,  to  answer  said  charge. 

(Signed)  R.  V.,  Judge. 

913.  (Sec.  7180.)     Recogmzance  forfeited. 
\_Title.']     Indictment  for . 

And  now  comes  the  prosecuting  attorney,  on  behalf  of  the 
State  of  Ohio,  and  presents  to  the  court  the  recognizance  of 

said  defendant,  taken  before  ,  on  the day  of , 

18 — ,  in  the  sum  of dollars,  with  J.  B.  as  surety. 

Thereupon,  the  said  defendant  being  three  times  solemnly 
called  to  appear  and  answer  said  charge  as  he  agreed  to  do, 
and  failing  so  to  do,  and  J.  B.,  the  surety,  being  three  times 
solemnly  called  to  produce  the  body  of  said  defendant  as  he 
as^reed  to  do,  and  failing  so  to  do,  the  court  order  that  the 
said  recognizance  be,  and  the  same  hereby  is,  forfeited  abso- 
lutely. 

The  court  may  add. :] — 

And  that  a  ca])ias  be  issued  for  said  defendant. 


-^7188.]  GRAND   JURY,   ETC.  457 

The  action  under  sections  7183-6  is  a  civil  action.     For  the  forms  of 
orders  and  judgment,  follow  those  given  in  the  Civil  Code. 

914.  Forfeiture  opened  vp,  etc. 
l^Title.']     Indictment  for 


On  motion  to  the  court,  by  counsel  for  the  defendant,  the 
forfeiture  of  the  recognizance  heretofore  entered  herein  is 
opened  up  and  set  aside. 

And  the  defendant,  C.  D.,  with  L.  R.,  his  surety,  enters  into 
recognizance  before  the  court  in  the  sum  of -^ dollars,  con- 
ditioned for  his  appearance  [name  timel,  to  answer  said 
charge. 


CI^APTER  III. 

THE  GRAND  JURY  AND  ITS  PROCEEDINGS. 

Formation  of  grand  jury — 

915.  Entry  on  return  of  venire  facias. 

916.  (Sec.  7196.)     Order  appointing  attorney  to  assist  prosecuting  attorney. 

917.  (Sec.  7197.)     Order    appointing   assistant   prosecuting   attorney   for 

county. 

918.  (Sec.  7201.)     Order  puni-shing  witness  refusing  to  answer,  etc 

919.  (Sec.  7202.)     Juror  sworn,  in  place  of  one  sick,  etc. 

New  grand  jury — 

920.  (Sec.  7203.)     Entry  on  the  formation  of. 

Witnesses,  record  of — 

Report  of  grand  jury,  and  proceedings  ox — 

921.  (Sec.  7210.)     Entry,  on  report  made. 

922.  (Sec.  7211.)     Order  discharging  prisoner  not  indicted. 
92.3.  (Sec.  7211.)     Order  recognizing  to  next  term. 

rORMATIOX  OF  GRAND  JURY 

The  first  entry  after  opening  the  minutes  for  criminal  proceedings  is 
on  the  return  of  the  venire  tacias  for  the  grand  jury.  For  the  manner 
of  drawing,  issuing  for,  and  forming  the  grand  jury,  see  sec.  5162,  et  seq. 
A  general  form  is  here  given.  A  faithful  record  of  all  the  proceedings 
should  be  made. 

A  grand  juror  may  be  punished  for  a  contempt  in  the  same  manner 


458  JOURNAL    ENTRIES.  [SEC.  7189- 

as  a  petit  juror,  as  provided  by  section  5178.     For  the  method  of  pro- 
ceeding, see  under  the  Civil  Code,  page  54,  ante. 

915.  Entry  on  return  of  the  venire  facias. 

The  venire  facias  for  a  grand  jury,  heretofore  issued,  and 
returnable  this  day  at  10  o'clock  a.  m.,  was  duly  returned  by 
the  sheriff,  with  his  indorsement  thereon,  as  follows,  to  wit  : 

18 — ,  April  16th.  Served  the  within  named  jurors  as  fol- 
lows, etc.     \_Copy  the  return  in  full.'] 

And  upon  calling  the  same  in  open  court,  A.  B.,  D.  F., 
L.  M.,  etc.,  appeared  in  answer  thereto  ;  and,  for  good  cause 
shown,  the  court  excused  D.  F.,  and  ordered  that  a  rule  issue 
for  T.  M.,  returnable  to-morrow  morning  at  10  o'clock,  to 
which  time  the  remaining  jurors  were  excused. 

And  the  panel  being  incomplete,  the  court  ordered  a  special 
venire  facias  ^  to  issue  to  fill  up  the  same,  returnable  to-mor- 
row morning  at  10  o'clock  ;  whereupon  the  clerk  issued  a 
special  venire  facias  for  the  following  named  persons,  to  wit : 
M.  i^.,  etc. 

Or,  if  there  be  no  rule  or  attachment,  or  other  cause  of  delay,  the 
special  venire  may  be  made  returnable  forthwith,  and  its  return  be 
made  a  part  of  the  above.  If  returnable  at  a  future  day,  it  may  be  a 
separate  entry,  as  follows : 

And  now  the  special  venire  facias,  heretofore  ordered 
by  the  court,  was  duly  returned  b}-  the  sheriff,  with  his  in- 
dorsement thereon,  as  follows,  to  wit: 

18 — ,  April  18th.  [Copy  the  return,  and  continue  as  on  the 
return  of  a  regular  venire.] 

Or,  when  the  jmnel  is  incomplete :] — 

And  the  panel  being  incomplete,  the  sheriff  summoned 
as  talesmen,'  to  complete  the  same,  the  following  named 
persons,  who  appeared  in  answer  thereto,  to  wit:  R.  S.,  etc. 

And  the  panel  being  full,  the  court  appointed  R.  H.  fcre- 

'See  sec.  5171. 


-7201.]  GRAND    JURY,   ETC.  459 

mull '  of  the  grand  jury,  and  he,  with  his  fellow  jurors,  took 
the  oaths  in  manner  and  form  as  prescribed  by  law  ;-  and 
the  said  jury  being  instructed  by  the  court  in  relation  to 
their  duties,  were  conducted  to  their  room,  attended  by  the 
sheriff. 

The  following  named  persons  compose  the  grand  jury, 
to  wit : 

1.  11.  S.,  foreman  of  the  grand  jury. 

2.  M.  D.,  etc. 

916.  (Sec.  7196.)     Order  appoiiithig  attorney  to  assist 'prosecuting 

attorney. 

[Title^^ 

In  this  case,  it  being  the  opinion  of  the  court  that  the  pub- 
lic interest  requires  it,  J.  E.  is  hereby  appointed  to  assist  the 
prosecuting  attorney  in  the  trial  of  the  accused. 

917.  (Sec.  7197.)'    Order  appointing  assistant  prosecuting  attor- 

ney for  county. 
In  the  matter  ot"  the  appoint-^ 
ment   of  assistant  prose-  > 
cuting  attorney.  j 
And  now,  it  being  shown  to  the  court  that  it  is  necessary 
for  the  proper  performance  of  the  duties  incumbent  upon  the 
office  of  prosecutino;  attornov  of  tliis  countv,  that  an  assist- 
ant  should    be    appointed,   the   court,  upon   careful   consid- 
eration of  the  premises,  hereby  appoint  R.  S.  as  such  assist- 
ant, at  a  yearly  salary  of dollars. 

And  now  came  the  said  R.  S.,  and  gave  his  bond  as  such 

assistant  prosecuting  attorney  in  the  sum  of dollars, 

with  T.  H.  and  L.  E  as  sureties,  to  the  approval  of  the  court, 
and  also  took  the  oath  of  office. 

918.  (Sec.  7201.)     Order  punishing  witness  refusing  to  answer, 

etc. 
In  the  matter  of  the  con- 1 
tempt  of  L.  S.  / 

And  now  came  L.  S.  before  the  court,  in   custody  of  the 

1  By  sec.  7190.  s  Section  since  repealed. 

^Secs.  7191  and  7192;  also,  see  post,  page  488. 


460  JOURNAL    ENTRIES.  [SEC.  7202- 

sheriff',  charged  with  contempt  of  court  in  refusing  to  answer 
as  a  witness  before  the  grand  jury. 

And  the  said  L.  S,  being  examined  touching  his  said  refusal, 
and  other  evidence  being  heard,  on  consideration  thereof, 
the  court  find  that  he  is  thereby  guilty  of  a  contempt  of 
court. 

It  is  therefore  ordered  *  that  a  fine  of  $ ^  be  imposed 

upon  the  said  E.  F.  for  this,  his  said  contempt,  and  that  he 
pay  the  cost  of  this  proceeding ;  for  both  of  which  execution 
is  awarded. 

Or,  *  that  the  said  E.  F.  be  imprisoned  in  the  jail  of  this 
county, •  there  to  remain  until  he  shall  submit  so  to  answer,, 
or  be  otherwise  duly  discharged, 
ingly 

919.  (Sec.  7202.)     Juror  sworn  in  ylace  of  one  sick,  etc. 

It  appearing  that  G.  H,,  one  of  the  grand  jurors  heretofore 
impaneled  and  sworn,  is  unable,  by  reason  of  sickness,  fur- 
ther to  attend  thereon,  it  is  ordered  that  L.  B.  be  sworn  in 
the  stead  of  the  said  G.  H.  as  such  grand  juror. 

New  grand  jury — 

920.  (Sec.  7203.)     Entry  on  the  formation  of. 

It  being  deemed  necessary,  the  court  this  day  ordered  the 
sheriff'  to  call  together  a  new  grand  jury  by  summoning  from 
among  the  bystanders  or  neigliboring  citizens  fifteen  good 
and  lawful  men  having  the  qualifications  of  grand  jurors: 

"Whereupon,  the  following  named  persons  were  called,  and 
appeared  in  answer  thereto,  to  wit : 

1.  R.  M., 

2.  L.  R.,  etc. 

And  the  court  appointed  R.  M.  foreman  of  the  said  grand 
jury,  and  he,  with  his  fellow  jurors,  took  the  oaths,  in  man- 
ner and  form  as  prescribed  by  law  ;  and  the  said  jury  being 

'  See  sec.  5254. 


-7211.]  GRAND    JURY,    ETC,  461 

instructed  by  the  court  in  relation  to  their  duties,  were  con- 
ducted to  their  room,  attended  by  the  sheriff. 

"Witnesses,  record  of — 

A  daily  record  of  the  witnesses  sworn  to  testify  before  the  grand  jury 
may  be  kept  by  an  entry  in  the  journal,  thus  : 

Record  of  Witnesses. 
The  following  named  witnesses  were  this  day  sworn  to  tes- 
tify before  the  grand  jury,  to  wit  : 

1.  A.  B., 

2.  C.  -D.,  etc. 

Report  of  or  and  jury,  and  proceedings  on — 

921.  (Sec.  7210.)     Entry,  on  report  made. 

This  day  appeared  at  the  bar  of  this  court  the  grand  jury 
heretofore  impaneled  and  sworn  in,  and  for,  the  body  of  the 
county  aforesaid,  viz.  : 
\.  11.  S., 
2.  M.  I).,  etc., 
and  })rosrnte(l  to  the  court,  through  their  foreman,  H.  S.,  their 
certain  bill  of    indictment  against  G.  II.,  for  burglary,  in- 
dorsed, "A  true  bill.     11.  S.,  foreman  of  the  grand  jury." 

And  also  their  certain  other  lull  of  indictment  against  J. 
T.,  for  grand  larceny,  indorsed,  "A  true  bill.  II.  S.,  foreman 
of  the  grand  jury."' 

\_Copy  report  in  full.'] 

Wlien  the  work  of  the  jury  is  completed,  add-] — 
And  there  being  no  further  business  for  the  said  jury,  they 
were  discharged  finally. 

922.  (Sec.  7211.)     Order  discharging  prisoner  not  indicted,  etc. 
yntle^     Charge  of  . 

Xo  indictment  having  been  found  against  this  defendant, 
he  is  hereby  discharged. 


462  JOURNAL    ENTRIES.  [SEC.  7211- 

923    (Sec.  7211.)     Order  recognizing  to  next  term. 

[Title.']     Cliarge  of . 

'Eo  indictment  liaving  been  found  against  this  defendant, 
the  court  order  that  upon  entering  into  recognizance  in  the 

sum  of dollars,  with  sufficient  security  for  his  appearance 

to  ansAver  the  charge  against  him  at  the  next  term  of  the 
court,  he  be  discharged  from  his  imprisonment. 


CHAPTER  IV. 

INDICTMENT  AND  PROCEEDINGS  THEREON. 

924.  (Sec.  7212.)  Order  for  election  between  two  indictments. 

92.5.  (Sec.  7212.)  Entry  of  election. 

926.  (Sec.  7212.)  Entry  of  order,  and  election. 

927.  (Sec.  7216.)  Prisoner  discharged  for  variance. 

A  motion  to  quash  au  indictment  upon  arraignment  thereon,  ad- 
dresses itself  to  the  sound  discretion  of  the  court,  and  is  never  granted 
except  in  very  clear  cases/ 

924.  (Sec.  7212.)     Order  for  election  between  two  indictments^^ 
[Title.']     Indictment  for . 

It  ax)pearing  to  the  court  that  there  are  pending  against 
this  defendant  two  indictments  for  the  same  crime,  it  is  or- 
dered that  the  prosecuting  attorney  elect  upon  which  he  will 
proceed  to  trial. 

925.  (Sec.  7212.)     E^dry  of  election. 
[Title^     Indictment  for . 

Now  comes  the  prosecuting  attorney,  in  accordance  with 
the  former  order  of  the  court,  and  elects  to  proceed  to  trial 
against  this  defendant  upon  the  indictment  filed  in  this  case, 
to  wit,  that  of  . 

If  the  election  is  made  at  the  time  of  the  order,  the  entry  may  be 
as  follows  : 

1  Ex  parte  Bushnell,  8  Ohio  St.  599. 

2  Bailcv  V.  The  State,  4  Ohio  St.  440. 


-7239.]  PROCEEDINGS    BETWEEN   INDICTMENT,    ETC.  463 

926.  (Sec.  7212.)     Entry  of  order,  and  election. 
[^Title!\     Indictment  for . 

Xow  comes  the  prosecuting  attorney,  and  it  appearing  that 
there  are  pending  against  this  defendant  two  indictments  for 
the  same  crime,  and  the  said  prosecuting  attorney  being  re- 
'^uired  to  elect  upon  which  indictment  he  will   proceed  to 

trial,  elects  to  proceed  upon  that  of    ,  as  filed  in  this 

case.' 

927.  (Sec,  7216.)     Prisoner  discharged  for  variance,  etc. 
\_Title.'\     Indictment  for . 

This  cause  coming  on  for  hearing  on  the  motion  to  quash 
the  indictment  herein,  and  the  court  finding  that  there  is  a 
variance  between  the  statement  in  the  indictment  and  the 
evidence-  off"ered,  which  is  material  and  prejudicial  to  the 
substantial  rights  of  the  defendant,  the  motion  is  granted ; 
and  the  defendant  is  discharged. 


CHAPTER  V. 

PROCEEDINGS  BETWEEN  INDICTMENT  AND  TRIAL. 

Whex  prisoner  insane — 

928.  (Sec.  7240.)     Order  for  jury  to  try  question. 

929.  (Sec.  7240.)     Entry  on  verdict  as  to  sanity. 

Pleas  to  the  indictment — 

930.  (Sec.  7245.)     Counsel  assigned. 

931.  (Sec.  7252.)     Indictment  quashed — prisoner  committed. 

932.  (Sec.  7252.)     Indictment  quashed — prisoner  bailed. 

933.  Motion  to  quash  overruled. 

934.  (Sec.  7252.)     Plea  in  abatement  sustained — prisoner  committed. 

935.  (Sec.  7252.)     Same — prisoner  bailed. 

936.  (Sec.  7254.)     Name  corrected,  on  plea  in  abatement. 

937.  (Sec.  7256.)     Demurrer  overruled,  and  {ilea  of  "not  guilty." 
938    Demurrer  sustained,  and  defendant  discharged. 

^  Upon  trial  being  had  upon  the  indictment  elected,  the  other  one  will  be 
quashed. 

2  As  to  variance  in  the  name  of  defendant,  see  sec.  7254.  and  Entry  No.  936; 
see  also  sec,  7303,  and  Entrv  No.  955. 
30 


464  JOURNAL    ENTRIES.  [SEC.  7240- 

Arraignment — 

939.  (Sec.  7260.)     Verdict  for  defendant  on  plea  in  bar  and  order  for  dis- 

charge. 

940.  (Sec.  72G0. )     Verdict  against  defendant  on  plea  in  bar,  and  plea  of 

"guilty  "  or  "  not  guilty." 

941.  (Sec.  72G1.)     Plea  of  guilty,  and  prisoner  remanded. 

942.  Plea  of  guilty,  and  sentence. 

943.  Plea  of  guilty  of  smaller  oflfense. 

944.  (Sec.  7262.)     Plea  of  not  guilty. 

945.  Plea  of  not  guilty  retracted,  and  plea  of  guilty  entered. 

Ch.axge  of  venue — 

946.  (Sec.  7263.)     Order  for. 

947.  (Sec.  7266.)     Recognizances  of  witnesses. 

When  prisoner  insane — 

928.  (Sec.  7240).     Order  for  jury  to  try  question. 
[Title.']     Indictment  for . 

This  clay  came  C.  W.  (I,,  the  attorney  for  the  defendant, 
and  suggested  to  the  court  that  the  defendant  in  this  case  is 
not  sane,  and  also  presented  the  certificate  of  J.  P.,  M.D.,  to 
the  same  eft'ect.  Thereupon,  it  is  ordered  that  a  jury  be  im- 
paneled to  try  Avhether  or  not  the  said  C.  D.  is  sane,  and  the 
hearing  is  set  down  for  Saturday,  June  24,  inst.,  to  which 
time  it  is  directed  that  the  venire  be  made  returnable. 

Upou  return  of  venire,  make  a  journal  entry  as  in  No.  97,  etc. 

If  a  .struck  jury  i.s  demanded,  follow  the  forms  giveu  on  page  53. 

929.  (Sec.  7240.)     Eyitry  of  rerdlct  as  to  sauily. 
[Title.]     Indictment  for . 

This  day  came  the  defendant  herein  in  charge  of  the  sheriff, 
and  his  attorney;  also  came  the  jury  heretotore  impaneled  in 
this  case,  to  wit : 

1.  E.  S.,  7.  C.  O., 

2.  J.  D.,  8.  S.  W., 
etc.,  etc., 

and  were  duly  sworn  according  to  law. 

And  thereupon,  after  hearing  tlie  evidence  and  the  charge 
of  the  court  u[)on  the  fpicstiou  whether  the  defendant  is  or 
is  not  sane,  the  jury  retired  to  their  room  in  charge  of  the 
sheriff  for  deliberation. 


-7252.]  PROCEEDINGS    BETWEEN    INDICTMENT,  ETC.  465 

And  afterward  came  the  said  jury  into  open  court  and  by 
their  foreman  presented  their  verdict  in  writing  as  follows, 
to  wit : 

"  We,  the  jury,  tind  that  the  defendant,  C.  D.,  is  [o?^  is  not] 
sane.  R.  S.,  Foreman." 

930.  (Sec.  7245,  77  O.  L.  59.)     Counsel  assigned. 
\_Tille.']     Indictment  for . 

And  now  the  defendant  being  brought  into  court  in  charge 
of  the  sheriff,  and  it  appearing  that  he  is  in  indigent  circum- 
stances, and  unable  to  employ  counsel,  the  court,  at  his  re- 
quest, appoint  R.  S.,  Esq.,  as  counsel  for  his  defense. 

931.  (Sec.  7252.)     Indictment  quashed — 'pri:'<oner  committed. 
[77^/t'.]     Indictment  for . 

And  now  this  cause  coming  on  for  hearing  on  the  motion 
of  tlie  defendant  to  quasli  the  said  indictment,  the  court  being 
fully  advised  in  the  premises,  *  grant  the  same.  The  court 
further  order  that  the  defendant  be  committed  to  the  cus- 
tody of  the  sheriff. 

932.  (Sec.  7252.)     Indictment  quashed — prisoner  bailed. 
l^Title.]     Indictment  for . 

As  in  last  to  *,  "nd  continue  :'\ —  grant  tlie  same.  The  court 
further  order  that  the  defendant  l)e  held  to  bail  in  the  sum 

of dollars  for  his  appearance  on  the  first  day  of  the  next 

term  of  this  court,  to  answer  the  charge  against  him  ;  and  in 
default  thereof  that  he  be  committed  to  the  custody  of  the 
sheriff. 

If  the  recognizance  be  at  once  given.,  add:'] — 
And  thereupon  the  defendant,  with  J.  II.  as  his  surety,  en- 
teretl  into  recognizance  in  accordance  with  the  above  order. 

933.  Jloiion  to  quash  overruled. 
[T'tle.']     Indictment  for 


As  in  No.  931  to  *,  and  continue:'] — overrule  the  same. 

934.  (Sec.  7252.)      Plea  in  abatement  sustained — prisoner  com- 
mitted. 

\_Titlc.]     Indictment  for . 

This  case  l)eing  this  day  heard  upon  the  indictment  and 


466  JOURNAL   ENTRIES.  [SEC.  7252- 

the  plea  in  abatement  thereto,  the  court  find  upon  the  evi- 
dence for  the  defendant.*  It  is  further  ordered  that  said 
defendant  be  committed  to  the  custody  of  the  sheriff. 

935.  (Sec.  7252.)     Same — imsoner  bailed. 
[Title.'] 

As  in  last  to  *,  and  continue:'] — The  court  further  order  that 

said  defendant  be  held  to  bail  in  the  sum  of dollars  for 

his  appearance  on  the  first  day  of  the  next  term  of  this  court, 
to  answer  the  charge  against  him ;  and  in  default  thereof 
that  he  be  committed  to  the  custody  of  the  sheriff. 

If  the  recognizance  he  at  once  given,  add:] — 
And  thereupon  the  defendant,  with  J.  II.  as  his  surety,  en- 
tered into  recognizance  in  accordance  with  the  above  order. 

936.  (Sec.  7254.)     Name  corrected,  on  'plea  in  abatement. 
\_TUle^     Indictment  for . 

This  cause  being  heard  on  the  plea  of  the  defendant,  and 
the  court  being  satisfied  thereby  that  the  true  name  of  said 
defendant  is  E.  F.,  it  is  ordered  that  the  correction  be  made  ; 
and  that  in  all  further  proceedings  under  this  indictment  said 
defendant  be  designated  by  the  name  of  E.  F.^ 

After  the  above  araeudmeut,  the  title  of  the  case  will  be : ' 

The  State  of  Ohio 
against 
E.  F.,  who  is  indicted  by  the  name  of  C.  D. 

937.  (Sec.  7256.)     Demurrer  overruled,  and,  plea  of'-'-not  guilty.'^ 
[7Y/^t'.]     Indictment  for . 

This  cause  coming  on  for  hearing  upon  the  demurrer  to  the 
indictment,  the  court,  on  consideration  thereof,  overrule  the 
same.  And  thereupon  the  said  defendant  being  lu'ought  into 
court  in  custody  of  the  sheriff,  and  being  arraigned  upon  said 
indictment,  for  plea  thereto,  saith  he  is  not  guilty,  and  puts 
himself  upon  the  country,  and  the  prosecuting  attorney  doth 
the  like. 

»  See  Lasure  v.  The  State,  19  Ohio  St.  43. 


-7260]  PROCEEDINGS    BETWEEN    INDICTMENT,  ETC.  467 

938.  Demurrer  sustained,  and  defendant  d Ischarged} 
\^Title^     Indictment  for . 

This  cause  coming  on  for  hearing  on  the  demurrer  to  the 
indictment,  the  court,  upon  consideration  thereof,  sustain  the 
same.  It  is  therefore  adjudged  that  the  said  C.  D.  be,  and  he 
hereby  is,  discharged. 

Arraignment — 

939.  (Sec.  7260.)      Verdict  for  defendant  on  plea  in  bar,  and  or- 

der for  discharge. 

[Title.']     Indictment  for . 

Now  comes  the  prosecuting  attorney,  on  behalf  of  the  State 
of  Ohio,  and  the  defendant  being  l)ronglit  into  court  in  cus- 
tody of  the  sheriff,  and  arraigned  upon  said  indictment,  offered 
a  plea  in  bar  thereto. 

And  thereupon  the  case  came  on  for  heai'iiig  upon  the  is- 
sue made  by  said  plea  and  the  reply  of  the  prosecuting  at- 
torney;  also  came  the  following  named  persons  as  jurors,  to 
wit : 

1.  J.  R.  7.  W.  L. 

etc.  etc. 

who  were  duly  impaneled  and  sworn,  according  to  law. 

And  the  said  jury,  having  heard  the  testimony  adduced, 
the  argument  of  counsel,  and  the  charge  of  the  court,  after 
deliberation  thereon,  returned  their  verdict  in  writing,  signed 
by  their  foreman,  as  follows  :  * 

"  We,  the  jury,  find  on  the  issue  joined  in  this  case  for  the 
defendant.  J.  R.,  Foreman." 

And  therefore  it  is  ordered  and  adjudged  that  said  defend- 
ant, C.  D,,  be  discharged. 

940.  (Sec.  7260.)      Verdict  against  defendant  on  plea  in  bar,  and 

pica  of  ''guilty'''  or  ^'  not  guilt'/.'' 

[Title.']     Indictment  for . 

As  in  last  to  *,  and  continue ;] — 

"  We,  the  jury,  find  on  the  issue  joined  in  this  case  against 
the  defendant.  J.  R.,  Foreman." 

And  thereupon  the  said  C.  D.,  being  asked  by  the  court 

1  Qucei-e :  After  demurrer  sustained,  has  tlie  court  the  disfretion  of  lioldiiig 
the  prisoner  in  custody  until  anotlier  indictment  can  be  found? 


468  JOURNAL    ENTRIES.  [SEC.  7261- 

if  he  is  guilty  or  not  guilty  of  the  offense  charged  against 
him,  saith  he  is  "guilty;"  and  is  remanded  to  the  custody 
of  the  sheriff  until  sentence. 

[Or,  saith  he  is  "  not  guilty,"  and  puts  himself  upon  the 
country,  and  the  prosecuting  attorney  doth  the  like.] 

941.  (Sec.  7261.)     Plea  of  guilty,  and  j^^isoner  remanded. 
[Title^     Indictment  for . 

N^ow  comes  the  prosecuting  attorney,  on  hehalf  of  the  State 
of  Ohio,  and  the  defendant  beino;  brouglit  into  court  in  cus- 
tody  of  the  sheriff,  and  arraigned  upon  said  indictment,  for 
plea  thereto,  saith  *  he  is  "  guilty ;"  and  is  remanded  to  the 
custody  of  the  sheriff  until  sentence. 

942.  Plea  of  guilty,  and  sentence. 
[Title.']     Indictment  for . 

As  in  last  to  *,  and  continue:'] — he  is  "guilty;"  thereupon 
[after  hearing  testimony  and  being  fully  advised  in  the  prem- 
ises^], it  is  ordered  and  adjudged  by  the  court  that  the  said 
C.  D.  [sentence  as  in  one  of  the  forms,  2)ost,  p.  47. 

943.  Plea  of  guilty  of  smaller  offense. 
[Title.]     Indictment  for  stabbing. 

As  in  No.  041  to  *,  and  continue :] — he  is  guilty  of  assault 
and  battery;  which  plea  is  accepted  by  the  prosecuting  at- 
torney, and  the  said  C.  D.  is  remanded  to  the  custody  of  the 
sheriff  until  sentence. 

944.  (Sec.  7262.)     Plea  of  not  guilty. 
[  Title.]     Indictment  for . 

As  in  No.  941  to  *,  and  continue:] — he  is  "  not  guilty ;"  and 
puts  himself  upon  the  country,  and  the  prosecuing  attorney 
doth  the  like. 

Tf  counsel  is  then  assigned,  add :  [sec.  7245.] 

And  it  appearing  tliat  said  defendant  is  in  indigent  circum- 
stances, and  unable  to  employ  counsel,  the  court,  at  his  re- 
quest, assign  J   W.  as  counsel  to  defend  him. 

iSee  note  1,  p.  479. 


-726G.]         proceedin(tS  between  indictment,  etc.  469 

945.  Plea  of  not  guilty  retracted,  and  plea  of  guilty  entered. 
[  7'itleJ]     Indictment  for . 

Xow  comes  tlie  prosecuting  attorney,  on  behalf  of  the  State 
of  Ohio,  the  dcfonihint  being'  brought  into  court  in  custody  of 
the  sheriff;  tlieroupon  said  defendant  retracts  his  plea  of  not 
guilty  lieretofore  entered,  and  for  plea  to  said  indictment, 
saith  he  is  guilty  of  assault  and  battery,  which  plea  is  accepted 
by  the  prosecuting  attorney;  and  the  said  defendant  is  re- 
manded to  the  custody  of  the  sheriff  until  sentence.  [Or  sen- 
tence may  be  pronounced.'] 

Change  of  venue — 

946.  (Sec.  7263.)     Order  for  cJiange  of  venue} 
[7V//r.]     Indictment  for . 

On  motion  of  the .  and  it  being  made  to  appear  to  the 

court,  by  athdavits,  that  a  fair  and  impartial  trial  of  this  case 
can  not  be  had  in  this  county,  it  is  ordered  and  directed  that 
the  venue  herein  V»e.  and  the  same  is  hereby,  changed  to  the 
adjoining  county  ol' .  And  on  application  of  the  prose- 
cuting attorney  therefor,  M.  W.,  Esq.,  is  hereby  appointed  to 
assist  in  the  further  prosecution  of  the  case.-  And  it  is  or- 
dered that  tlie  witnesses  for  the  state  enter  into  recognizance 
to  appear  before  the  court  of  common  pleas  of  the  said  county 
of ~.^ 

947.  (Sec.  7266.)     Becognhanccs  of  ivitnesses  taken, 
[Title.]     Indictment  for . 

This  day  came  the  witnesses  herein,  and  entered  into  re- 
cognizance before  the  court  in  the  amounts,  and  with  the 
sureties,  severally  set  opposite  their  names,  conditioned  for 
their  appearance  on  the  day  of  ,  18 — ,  before  the 

'  Where  parties  are  jointly  indicted,  the  court  has  power,  upon  good  cause 
shown,  to  order  a  change  of  venue  as  to  either  of  the  defendants,  upon  his  mo- 
tion alone.  Such  inoti>"in  and  order  necessarily  involve  ami  include  a  motion 
and  order  for  a  separate  trial  of  the  party  making  the  motion,  and  have  all  the 
force  and  effect  of  a  motion  and  order  for  both  purposes.  Brown  v.  The  State, 
18  Ohio  St.  496. 

a  By  sec.  7264. 

'By  sec.  7266.     It  is  better  to  make  the  order  as  notice  to  the  witnesses. 


470  JOURNAL    ENTRIES.  [SEC.  7267- 

Court  of  Common  Pleas  of  the  County  of ,  to  which  the 

venue  of  this  case  has  been  changed,  viz. : 

Names  of  Witnesses.         Amount  of  Recog.         Names  of  Sureties. 

1.  C.  D.  $300.  R.  A. 

etc.  etc.  etc. 


CHAPTER  VI.      • 

TRIAL,  AND  PROCEEDINGS  INCIDENT  THERETO. 

Juries — 

948.  Jury  formed,  in  capital  cases. 

Evidence — 

949.  (Sec.  7283.)  Order  for  jury  to  view  place. 

950.  (Sec.  7290).  Order  for  subpoena  for  person  in  penitentiary,  etc. 

951.  (Sec.  7293.)  Commission  to  take  testimony. 

952.  (Sec.  7295.)  Prisoner  discharged  to  become  state's  witness. 

Trial— 

953.  (Sec.  7301.)  Leave  to  be  tried  when  absent,  or  by  the  court. 

954.  (Sec.  7302.)  Separate  trials  ordered. 

955.  (Sec.  7303.)  Indictment  quashed,  and  prisoner  detained. 

Exceptions — 

956.  (Sec.  7304.)     Bil    of  exceptions  allowed,  etc. 

957.  (Sec.  7306.)     Attorney  appointed  to  argue  case,  etc. 

ACQUITT.\L  WITHOUT  TRIAL 

958.  (Sec.  7309.)     Prisoner  discharged,  if  not  tried,  etc. 

959.  (Sec.  7310.)     Same,  when  recognized. 

960.  (Sec.  7311.)     Application  for  discharge  refused. 

Juries — 

A  jury  is  made  up  for  the  trial  of  every  capital  case  specially ;  ^  and 
the  entries  on  the  return  of  the  venire  must  be  made  under  the  title  of 

>Sec.  7267. 


-7282.]        TRIAL,    AND    PROCEEDINGS    INCIDENT   THERETO.  471 

the  case.  A  form  similar  to  the  following  may  be  used,  but  the  clerk 
should  in  each  case  make  a  full  record,  in  the  most  intelligible  form, 
of  the  proceedings  had. 

948.  Jury  formed  in  capital  case. 

\_Title.'\     Indictment  for  murder  in  the  first  degree. 

This  day  came  the  prosecuting  attorney,  on  behalf  of  the 
State  of  Ohio,  the  defendant,  C.  D.,  being  brought  into  court 
in  custody  of  the  sheriff,  and  his  counsel  also  coming. 

And  the  venire  ^  for  tlie  jury  in  this  case  heretofore  issued 
according  to  law,  returnable  this  day,  was  duly  returned  by 
said  sherifi",  with  his  indorsement  thereon  as  follows  :  [copy 
in  full.'] 

And  said  venire   being  called  in    open   court,  all  of  the 
above-named  persons  appeared  in  answer  thereto,  except  F 
G.,  .T.  H.,  etc. ;  and  the  court  ordered  that  a  rule  be  issued  for 
F.   G.,  directing   him  to    appear   forthwith    to    show  cause 
for  his  failure  to  obey  the  writ  of  this  court.- 

And  also  the  alias  venire^  heretofore  issued  according  to 
law,  returnable  this  day,  was  duly  returned  by  said  sherifi", 
with  his  indorsement  tliereon,  as  follows:  [copy  in  full.] 

And  said  alias  venire  being  called  in  open  court,  all  of  the 
above-named  persons  appeared  in  answer  thereto. 

And  upon  the  further  call  of  said  venire,  and  said  alias 
venire,  for  cause  shown,  the  court  excused  R.  T.,  etc.,  and 
the  defendant,  by  his  counsel,  challenged  G.  H.  for  cause, 
and  the  challenge  was  sustained  :  and  also  challenged  per- 
emptorily D.  E.,  etc. ;  and  R.  L.  and  J.  B.  being  separately 
tried  were  accepted  as  jurors  in  this  case.  And  it  ap- 
pearing to  tiie  court  that  there  were  not  thirty-six  qualified 
jurors  present,  it  was  ordered^  [on  motion  of  the  defendant] 
that  the  clerk  draw  from  the  box,  as  in  other  cases,  a  suffi- 

1  Directed  bj*  sec.  7268. 

-See  sec.  5641  in  connection  with  sec.  5178.  For  further  proceedings  against 
a  juror,  see  p.  54. 

3  Directed  by  sec.  7268. 
*  See  sec.  7269. 


472  JOURNAL   ENTRIES.  [SEC.  7283- 

cient  number  of  ballots  to  make  the  number  of  competent 
jurors  thirty-six,  and  that  a  venire  issue,  returnable  [name 
day'\. 

And  thereupon  the  court  adjourned  the  further  hearing  of 
the  case  until  to-morrow  morning  at  10  o'clock. 

Second  day. 

\_Title.']     Indictment  for  murder  in  the  first  degree. 

This  day  again  came  the  prosecuting  attorney,  on  behalf 
of  the  State  of  Ohio,  the  defendant  being  brought  into  court 
in  custody  of  the  sheriff,  and  his  attorney  also  coming.  Also 
came  R.  L.  and  J.  B.,  heretofore  accepted  as  jurors  in  this 
case. 

Continue  ivith  record,  of  all  iwoceedings  had  iintil  the  jury  is 
comjjleie,  and  then  say  f] — and  the  jury  being  complete,  the 
following  named  persons  having  been  tried  and  accepted, 
to  wit : 

1.  R.  L.  2.  J.  B..  etc, 

were  duly  impaneled  and  the  following  oath  administered 
to  them  :  "  You  shall  well  and  trul}'  try,  and  true  deliver- 
ance make,  between  the  State  of  Ohio  and  the  prisoner  at 
the  bar,  C.  B.,  so  help  you  God."^  And  the  trial  proceeded, 
etc. 

In  other  criminal  cases — 

By  section  7276  the  same  forms  of  summoning  and  impaneling  ju- 
ries are  had  as  in  civil  cases.     See  under  Civil  Code. 

Evidence  — 

949.  (Sec.  7283.)     Order  for  jury  to  view  place,  etc. 

[Title.']     Indictment  for . 

It  being  proper,  in  the  opinion  of  the  court,  for  the  jury  to 
have  a  view  of  the  place  in  which  [any  material  fact~\  occurred, 
it  is  ordered  that  said  jury  be  conducted  in  a  body,  under  the 
charge  of  the  sheriti:',  to  the  said  place  ;  and  that  the  same  be 

iSee  sec.  7281.    See  also  the  case  of  Wareham  v.  The  State,  25  Ohio  St.  60L 


-7301. J        TRIAL,    AND    PROCEEDINGS    INCIDENT    THERETO.  473 

shown  to  tliem  by  F.  G.     And  that  they  return  to-morrow 
morning  at  10  o'clock. 

950.  (Sec.  7290.)     Ortlerfoi^ subporna  for  person confinedin  pen- 

Ueniidry,  work-house,  or  prison. 

[Title.]     Indictment  for . 

It  being  necessary  to  procure  the  testimony  in  this  case  of 
M.  S.,  now  confined  in  tlie  ]ienitcntiary,  it  is  ordered  that  a 
subpoena  ])e  issued,  dirt'cted  to  the  warden  of  the  peniten- 
tiary [or,  superintendent  or  is:ee[)er  of  woi-k-house  or  ])rison], 
commanding  liim  to  bring  the  said  M.  S.  before  the  court. 

951.  (Sec.  7203.)     Commission  to  takr  testimony. 
[Title.l     Indictment  for . 

On  appHcation  of  tlie  defendant,  l)y  liis  counsel,  and  it  ap- 
pearing that  G.  F.  is  a  material  witness  in  his  behalf,  and 
that  he  now  resides  in  Lexington.  Kentucky,  the  court  hereby 
n})]»oint  the  mayor  of  said  Lexington  a  special  conmiissioner, 
and  direct  tliat  a  commission  l)e  issued  to  him,  to  take  the 
testimony  of  said  G.  F.,  ujion  interrogatories  and  cross-inter- 
rogatories on  hie,  and  which  shall  Ije  annexed  to  said  com- 
mission, at  some  eonvenient  place   in   said   city,  on  or  before 

the day  of ,  a.  d.  18 — ,  and  return  the  same  to  this 

court  duly  certified. 

And  it  is  ordered  tliat  notice  of  this  order  be  given  to  the 
prosecuting  attorney days  l)efore  such  examination. 

952.  (Sec.  7295.)     Prisoner  discharged  to  become  state's  vitness. 
[Title.']     Indictment  for . 

It  appearing  to  the  court  that  the  defendant,  E.  F,,  is  will- 
ing to  become  a  witness  for  the  state  in  the  prosecution  of 
his  co-defendant  upon  being  discharrged  therefrom  himself, 
it  is  ordered  that  a  nolle  prosequi  be,  and  is  hereby,  entered 
herein  as  to  said  E.  F. 

Trial— 

953.  (Sec.  7301.)     Leace  to  be  tried  when  absent,  or  by  the  court. 
[Title.']     Indictment  for . 

The  defendant,  C.  D.,  now  comes  by  his  attorney,  and  pre- 
sents to  the  court  his  written  request  to  be  put  upon  trial  in 
his  absence  [or,  be   tried  by  the  court],  being  in  words  as 


474  JOURNAL    ENTRIES.  [SEC.  7302- 

follows,  to  wit  [co^)»/  in  fuir\,  and  the  said  request  is  granted 
by  the  court. 

954.  (Sec.  7302.)     Separate  trials  ordered. 
[Title.] 

On  application  to  the  court  by  the  defendant,  E.  F.,  the 
court  orders  that  a  separate  trial  be  had  of  each  defendant 
herein. 

955.  (Sec.  7303.)     Indictment  quashed  and  prisoner  detained. 
[Title.']     Indictment  for . 

On  motion,  and  it  appearing  to  the  court  that  a  mistake 
has  been  made  in  charging  the  proper  oflense  in  the  indict- 
ment against  this  defendant,  the  said  indictment  is  hereby 
quashed,  and  the  jury  discharged.  But  it  appearing  that 
there  is  good  cause  to  detain  the  said  defendant  in  custody, 
it  is  ordered  that  he  enter  into  recognizance  to  answer  to  the 
offense  on  the  first  day  of  the  next  term  of  this  court,  in  the 
sum  of  $ .     Otherwise,  that  he  be  committed  to  jail. 

And  it  is  ordered  that  the  witnesses  for  the  state  enter  into 
recognizance  to  appear  at  the  same  time  and  testify. 

Exceptions — 

956.  (Sec.  7304.)     Bill  of  exceptions  allowed,  etc. 
[Title.]     Indictment  for . 

See  Entry  No.  192,  Civil  Code. 

957.  (Sec.  7306.)     Attorney  apjjointed  to  argue  ease,  etc. 
[Title.]     Indictment  for . 

The  prosecuting  attorney  having  presented  his  certain  bill 
of  exceptions  in  this  case  to  tlie  supreme  court,  and  the  su- 
preme court  having  aHowed  such  bill  to  be  filed,  G.  P.,  one 
of  the  attorneys  of  this  court,  is  hereby  appointed  to  argue 
said  case  against  the  prosecuting  attorney  before  said  court. 

Acquittal  without  trial — 

958.  (Sec.  7309.)     Prisoner  discharged  if  not  tried,  etc. 
[Title.]     Indictment  for . 

The  defendant  herein  having  been  indicted  [state  the  time  when"] 


-7311.]  VERDICT    AND    JUDGMENT,    ETC.  475 

and  not  brought  to  trial,  and  the  continuance  [or,  delay]  not 
being  caused  by  his  act,  he  is  hereby  discharged.^ 

959.  (Sec.  7310.)     Same,  icken  recognized. 
\_Title.'\     Indictment  for . 

The  defendant  herein  not  having  been  brought  to  trial,  and 

this  being  the  term  of  the  court  after  his  indictment, 

he  is  hereby  discharged  from  his  recognizance.^ 

960.  (Sec.  7311.)     Application  for  discharge  refused. 
\_Title^     Indictment  for . 

This  cause  being  heard  on  the  application  of  the  defend- 
ant for  discharge  on  the  indictment  against  him,  and  the  court 
being  satisfied  that  there  is  material  evidence,  on  the  part  of 
the  state,  to  be  had  at  the  next  term,  and  which  can  not  now 
by  reasonable  diligence  be  had,  the  said  application  is  refused; 
and  the  said  defendant  is  remanded  to  the  custody  of  the 
sheriff"  [or,  admitted  to  bail  for  his  appearance  to  answer 
said  charge  at  the  rext  term  of  this  court]. 


CHAPTER    VII. 

VEKDICT  AND  JUDCT:yrENT,  AND  PROCEEDINGS  THEREON. 

Verdict — 

961.  General  entry  on  reture  of  verdict  when  given  on  the  day  the  trial 

begun. 

Cause  progressed — 

962.  Cause  progressed  ;  second  or  succeeding  day. 

Forms  of  Veedicts. 
I.  General  verdict. 
II.  Guilty  on  one  count. 

III.  Guilty  of  a  degree  inferior  to  the  charge. 

IV.  Guilty  of  an  attempt. 

'  This  is  not  a  mere  temporary  release  from  confinement,  but  a  final  judg- 
ment in  the  cause,  and  a  bar  to  all  subsequent  prosecutions  for  the  same  crime 
or  ofiense.     Ex  parte  McGehan,  22  Ohio  St.  442. 


476  JOURNAL    ENTRIES.  [SEC.  7312- 

Sextenxe — 

963.  (Sec.  7319.)     Pronounced  on  verdict. 

964.  Pronounced  on  plea  of  guilty. 

965.  Nolle  prosequi. 

Forms  of  Sentence. 

I.  Imposing  fine. 
II.  Same,  and  order  committing  till  paid. 

III.  Sending  to  jail. 

IV.  Sending  to  the  penitentiary. 
V.  Sentence  of  hanging. 

ExECUTIOX  OF  SUSPEXDED  SENTEX'CE — 

966.  (Sec.  7321.)     Addendum  suspending  sentence  for  a  misdemeanor. 

967.  (Sec.  7325.)     Addendum  suspending  sentence  for  a  felony. 

968.  (Sec.  7324.)     Order  carrying  suspended  sentence  into  execution. 

969.  (Sec.  7325.)     Escaped  prisoner  re-sentenced  when  captured. 

970.  (Sec.  94.)     Piecord  of  reprieve. 

EXECUTIOX  OF  DEATH  SENTENCE 

971.  (Sec.  7344.)     Time  fixed  for  execution  of  escaped  prisoner. 

Convict  insane  or  pregnant — 

972.  (Sec.  7346.)     Insanity  found,  execution  suspended. 

973.  No  insanity  found. 

Verdict — 

When  a  jury  is  discharged  before  verdict,  for  the  reason 
of  sickness  of  a  juror,  or  other  accident  or  calamity,  or  be- 
cause they  can  not  agree,  as  specitied  in  section  7313,  use  the 
forms  in  the  Civil  Code,^  being  careful  to  state  the  cause  of 
the  discharge ;  otlierwise  the  discharge  will  operate  as  an  ac- 
quittal of  the  defendant.- 

It  may  also  be  well  to  add  :  "  without  prejudice  to  the  pros- 
ecution of  this  case."' 

961.   General  entry  on  return  of  verdict;  ichcn  given  on  the  day 
that  the  tried  is  begun. 

The  State  of  Ohio~| 

vs.  ^Indictment  for . 

C.  V>.  j 

Xow  came  the  prosecuting  attorney  on  behalf  of  the  vState 


■i  nines  r.  The  State,  24  Ohio  St.  134. 


-7314. j  VERDICT    AND    JUDGMENT,  ETC.  477 

of  Ohio,  and  tlie  defendant  witli  liis  counsel ;  [or  say^  the  de- 
fendant being-  brought  into  court  in  custody  of  the  sheriff;] 
also  came  the  following  named  persons  as  jurors,  to  wit: 
1.  J.  E.,  7.  W.  L., 

etc.,  etc., 

who  were  duly  impaneled  and  sworn  according  to  law. 

And  the  said  jury  having  heard  the  testimony  adduced  by 
the  parties,  the  arguments  of  counsel,  and  the  charge  of  the 
court,  retired  to  their  room  in  charge  of  the  sheriff^  for  de- 
liberation. 

And  afterward  came  the  jury,  conducted  into  court  by  the 
sheriff",-  and  returned  the  following  verdict  in  writing,  signed 
by  their  foreman,  to  wit : 

"  We,  the  jury,  on  the  issued  joined,  find,  etc."  \^See  forms^ 
page  478.] 

[Signed,]  B.  F.,  Foreman. 

If  t/te  jury  be  pollrd,  add,  after  the  verdict: —  [By  sec.  7ol4.] 
AVhereupon,  on  the  request  of  the  prosecuting  attorney 
\or,  the  defendant],  the  court  ordered  that  the  jury  be  polled. 
And  ujion  each  juror  being  called  by  name,  and  inquired  of 
if  the  verdict  just  read  was  his  verdict,  each  for  himself  sep- 
arately answered,  "•  It  is." 

//'  the  veniict  be  '■''  guilty^'  add :] — 

And  thereupon  said  defendant  is  ordered  into  the  custody 
of  the  sheriff'  to  await  sentence. 

If  the  verdict  be  "  not  guilty,'^  a<(d:'] — 

And  there  being  no  further  charge  against  said  defendant, 
he  is  hereby  discharged. 

Cause  progressed — 

If  the  trial  is  not  completed  on  the  day  it  is  begun,  the  journal  should 
show  each  day's  2)rogress,  as  iu  civil  cases.^ 

902.   Cause  progres><ed  ,-  second  or  succeeding  day. 

[77('^e.]     Indictment  for  . 

This  day  again  came  the  prosecuting  attorney  on  behalf  of 

'  See  sec.  7^12.  2  See  sec.  7314. 

■'  See  pages  -jij  and  57. 


478  JOURNAL   ENTRIES.  [SEC.   7315- 

the  State  of  Ohio,  and  the  defendant  with  his  counsel ;  [or  say, 
the  defendant  being  brought  into  court  in  custody  of  the 
sheriff;]  also  came  the  jury  heretofore  impaneled  and  sworn, 
and  the  trial  proceeded. 

\_Let  the  entry  show  the  slage  of  proceeding  reached  as  in  civil 
cases,  until  verdict  is  reached,  which  enter  in  the  forin  given  above 
in  Entry  No.  961.] 

Forms  of  Verdicts. 

I.  General  verdict — 

"We,  the  jury,  on  the  issue  joined,  find  the  defendant  guilty 
\or  not  guilty]  as  he  stands  charged  in  the  indictment. 

II.  Verdict  of  guilty  on  one  count — 

"We,  the  jury,  on  the  issue  joined,  find  the  defendant  guilty 
of ,  as  he  stands  charged  in  the count  of  the  indict- 
ment, and  not  guilty  on  the count. 

In  case  of  larceny,  embezzlement,  or  obtaining  j^'^'opcrty  by 
false  pretense,  add-] — and  we  do  assess  the  value  of  the  said 
property  at dollars.^ 

III.  Verdict  of  guilty  of  a  degree  inferior  to  the  charge — ^ 
"We,  the  jury,  on  the  issue  joined,  find  the  defendant  not 

guilty  of ,  as  he  stands  charged  in  the  indictment,  but 

find  him  guilty  of . 

IV.  Verdict  of  guilty  of  an  attempt — ^ 

"We,  the  jury,  on  the  issue  joined,  find  the  defendant  not 
guilty  of  arson,  as  charged  in  the  indictment,  but  we  find 
him  guilty  of  an  attempt  to  commit  arson. 

Sentence — 

963.  (Sec.  7319.)     Sentence  pronounced  on  verdict. 

\_Titlc.']     Indictment  for . 

The  defendant  herein  having  been  heretofore  convicted  of 

1  By  sec.  7315.  If  the  verdict  doe.s  not  state  the  value  of  the  property  stolen, 
judgment  rendered  on  the  verdict  will  be  reversed  on  error.  Armstrong  v. 
The  State,  21  Ohio  St.  357. 

3  By  sec.  7316. 


."I  VERDICT    AND    JUDGMENT,    ETC.  479 

,  WU8  this  day  brought  into   court,   in  custody  of  the 

sheriff",  and  informed  by  the  court  of  the  verdict  of  the  jury 
and  inquired  of*  if  he  had  any  thing  to  say  why  judgment 
should  not  be  pronounced  against  liim ;  and  having  nothing 
but  what  he  hatli  ah'cady  said;  [or,  showing  no  good  and 
sulficient  cause  why  judgment  shouki  not  be  pronounced  :] 

It  is  therefore  adjudged  by  the  court,  etc.  [For  forms  oj 
sentence,  see  b(loiv.'\ 

964.  Sentence  pronounced  on  plea  of  guilty. 
[  Title.']     Indictment  for . 

The  defendant  herein  having  on  a  former  day  of  this  term 
entered  a  plea  of  guilty  to  the  charge  of  the  indictment  in 
this  case,  was  this  day  brought  into  court  in  custody  of  the 
sherifl";  and  [the  court  having  heard  the  testimony  adduced,' 
and  l)cing  fully  advised  in  the  ju'cmises,  and  the  said  defend- 
ant] being  in(|uired  of,  etc.     [Conclude  as  from  *,  in  JS'o.  693.] 

965.  Nolle  prosequi. 

[Title.]     Indictment  for . 

Nolle  prosequi  is  entered  lierein,  by  order  of  court,  at  re- 
quest of  the  prosecuting  attorney. 

Forms  of  Sentence. 

I.  Imposing  fine — 

— that  the  said  defendant,  C.  D.,  pay  a  fine  of dollars, 

and  the  costs  of  this  prosecution ;  *  and  execution  is 
awarded.'- 

II.  Same,  and  order  committing  till  paid — ^ 

As  in  last  to  *,  and  add-] — and  that  he  stand  committed 
to  the  jail  of  ■ — —  county  until  the  amount  of  said  fine  and 
costs  shall  be  paid,  or  secured  to  be  paid,  or  he  be  otherwise 
legally  discharged. 

1  As  provided  by  sec.  7320,  in  mitigation  of  sentence,  when  the  offense  is 
punishable,  either  in  whole  or  in  part,  by  fine. 

'By  sec.  7328.  3Sec.7327. 

31 


480  JOURNAL   ENTRIES  [SiilC. 

III.  Sending  to  jail — 

— that  the  said  C.  D.  be  imprisoned  in  the  jail  of 

county  [and  kept  at  hard  labor]  ^  for  the  term  of months ; 

and  that  he  pay  the  costs  of  this  prosecution,^  for  which  exe- 
cution is  awarded. 

IV,  Sending  to  the  penitentiary — 

— that  the  said  defendant,  C.  D.,  be  imprisoned  and  confined 
in  the  penitentiary  of  this  State,  and  kept  at  hard  labor,  but 
without  any  solitary  confinement,  \or,  kept  at  hard  labor  for 

the  period  of ,  and  also  be  kept  in  solitary  confinement 

in  tjie  cells  of  the  peiiitentiary  without  labor,]  for  the  period 

of f  and  that  he  pay  the  costs  of  this  prosecution,^  for 

which  execution  is  awarded. 

y.  Sentence  of  hanging — 

— that  the  defendant,  C.  D.,  be  taken  hence  to  the  jail  of 

county,  and  be  therein  confined  in  solitary  confinement 

until  conveyed  as  prescribed  by  law  to  the  Ohio  Penitentiary 

at  Cohirabus,  Olno,"*  where  he  shall  be  securely  kept  until , 

the day  of ,  a.  d.  18 — ;  and  that  on  that  day  he  be 

taken  thence  by  thesherifi:'to  the  place  of  execution,  tmd  there, 

between  the  hours  of and    ,  ou  the  day  last  named, 

he  he  han2:ed  by  the  neck  until  he  is  dead.     That  he  pay  the 
costs  of  this  prosecution,-^  and  execution  is  awarded  therefor. 

Execution  of  sentence  suspended — 

If  defendant  give  notice  to  the  court  of  his  intention  to  file,  or  ap- 
ply for  leave  to  file,  a  petition  in  error,  the  court  may,  by  sec.  7321, 
add  to  the  entry  of  sentence  as  follows : 

1  By  sec.  6800. 

2  See  sec.  6799.  The  statute  does  not  require  sentences  of  imprisonment  to 
commence  inpresenfi;  and  it  should  not  be  so  construed,  where  no  present  ef- 
fect can  be  given  to  such  sentence,  by  reason  of  another  subsisting  judgment 
of  imprisonment.  It  is  not  error,  upon  a  conviction  in  a  criminal  case,  to  make 
one  term  of  imprisonment  commence  when  another  terminates.  But  the  judg- 
ment must  show  clearly  what  other  sentence  is  referred  to,  Williams  v.  The 
State,  18  Ohio  St.  46. 

3  By  sec.  6799. 

*By  sec.  7839,  82  O.  L.  169 


-7343.]  VERDICT    AND    JUDGMENT,    ETC.  481 

966.  (Sec.  7321.)     Addendum  suspending  sentence  for  a  misde- 

meanor. ' 
And  the  said  defendant  now  giving  notice  of  his  intention 
to  apply  for  a  writ  of  error,  on  motion,  it  is  ordered  that, 
u[)on  a  recognizance  being  given  by  tlie  said  C.  D.  in  the 

sum  of  $ ,  with  security  to  the  approval  of  the  court  [or, 

clerk],  conditioned  according  to  law,  the  execution  of  the 
sentence  herein  be  suspended  until  [state  time^. 

967.  (Sec.  7325.)     Addendum  suspending  sentence  for  a  felony} 
And  the  said  defendant  giving  notice  of  his  intention  to 

apply  for  a  writ  of  error,  on  motion,  it  is  ordered  that  the  exe- 
cution of  the  sentence  herein  be  suspended  until ;  and 

that  the  said  C.  I),  be  committed  to  the  custody  of  the  sher- 
iff, to  be  imprisoned  until  such  time  as  the  said  nuitter  shall 
be  disposed  of. 

968.  (Sec.  7324.)     Order  carrying  suspended  sentence  into  exe- 

cution. 

[Title.']     Indictment  for . 

The  defendant  in  this  case  having  been  sentenced  at  the 
last  [o/-,  at  a  former]  term  of  this  court,  and  the  sentence 
having  been  then  suspended,  on  motion  of  the  defendant,  and 
no  writ  of  error  upon  said  judgment  having  been  allowed 
\or^  the  said  judgment  having  been  afhrmed  by  the  supreme 
court,  to  which  a  writ  of  error  was  taken],  it  is  therefore 
ordered  that  the  said  sentence  be  now  carried  into  execution. 

969.  (Sec.  7325.)     Escaped  jjrisoner  re-sentenced  when  captured. 
[Tdlc]     Indictment  for . 

The  defendant  herein  having  been  heretofore  convicted  of 
— — ,  and  sentenced  by  the  court,  and  having  thereafter  escaped 
before  confinement  in  the  penitentiary;  and  the  said  defend- 
ant being  this  day  again  brought  into  court  in  the  custody 
of  the  sheriff,  it  was  ordered  that  the  former  sentence  against 
him  be  set  aside.  And  the  said  defendant  being  inquired 
of  *  if  he  had  any  thing  to  say  why  judgment  should  not 

'  For  suspension   of  sentence  after  petition  in  error  is  filed,  see  sees.  7361-3, 

and  entries  Nos.  982  and  933. 


482  JOURNAL    ENTRIES.  [SEC.   7344- 

be  pronounced  against  him,  and  having  nothing  but  what  ho 
hath  ah'eady  said  [_07',  and  showing  no  good  and  sufficient 
cause  why  judgment  should  not  be  pronounced]  : 

It  is  therefore  considered  and  adjudged  by  the  court,  etc. 
\_For  froms  of  sentence,  see  ante,  pages  479  and  480.] 

970.  (Sec.  94.)     Record  of  reprieve. 

\_Title.'\     Indictment  for  murder  in  the  first  degree. 

This  day  came  the  sheriff,  and  presented  to  the  clerk  of 
this  court  a  certain  warrant  of  reprieve,  granted  by  the  gov- 
ernor of  this  state  to  this  defendant,  C.  D,,  now  under  sen- 
tence of  death  in  this  court ;  which  said  reprieve  is  in  the 
following  words,  to  wit :  [copy  in  full.'] 

Execution  of  death  sentence — 

971.  (Sec.  7344.)      Time  fixed  for  execution  of  escaped  prisoner. 
[Title.']     Indictment  for  murder  in  the  first  degree. 

The  defendant  herein  having  been  heretofore  sentenced  to 
be  hung,  and  having  subsequently  escaped,  now  comes  the 
sheriff",  and  makes  return  of  the  re-arrest  of  the  said  defend- 
ant.    It  is  therefore  ordered  that  the  said  C.  D.  be  kept  in 

solitary  confinement  in  the  jail  of county,  until  tlie 

day  of ,  A.  D.  18 — ,  and  that  on  that  day  he  be  taken 

thence,  by  the  sheriff",  to  the  place  of  execution  designated  in 
the  former  judgment  of  this  court,  and  there,  between  the 

hours  of and ,  on  the  day  last  named,  he  be  hanged 

by  the  neck  until  he  is  dead. 

Convict  insane  or  pregnant — 

The  proceediugs  to  determiue  the  sanity  or  insanity  of  a  prisoner 
sentenced  to  death  are  had  out  of  court,  by  a  judge  and  jury,  with  the 
clerk  of  the  court,  the  sheriff,  and  the  prosecuting  attorney.  The 
judge  certifies  his  orders,  and  the  clerk  enters  tlie  finding  of  the  jury, 
with  the  orders  on  the  journal  of  the  court.  The  same  forms  are  used 
in  case  of  a  female  convict  found  pregnant. 

972.  (Sec.  7346.)     Insanity  found,  and  execution  suspended. 
[  Title.]     Indictment  for . 

The  sheriff'  of  this  court  having  on  a  former  day,  to  wit, 


-7349.]  VERDICT    AND    JUDGMENT,    ETC.  483 

the day  of ,  18 — ,  given  notice  to  the  Hon.  A.  H., 

one  of  tlic  judges  of  this  court,  of  the  apparent  insanity  of 
the  said  C.  D.,  now  came,  before  the  said  A.  H.,  judge,  the 
prosecuting  attorney,  on  belialf  of  the  State  of  Ohio,  the  said 
C.  D.,  in  charge  of  the  sheriif,  and  his  attorney,  S.  C. ;  also 
came  the  following  named  persons,  summoned  as  jurors  by 
said  sheriff,  to  wit  [name  jurors],  who  were  duly  impaneled 
and  sworn  to  try  the  issues  to  them  presented.  And  there- 
upon this  cause  came  on  further  to  be  heard  on  the  evidence 
touching  the  insanity  of  the  said  C.  D. 

And  the  said  jury  having  heard  all  the  evidence,  after 
consultation  had  thereon,  presented  their  finding  in  writing, 
signed  by  themselves,  as  follows  : 

"  Wq,  the  jury,  find  upon  the  evidence  tliat  the  prisoner 
C.  D.,  *  is  insane." 

And  thereupon  the  said  A.  11.,  judge,  made  and  certified 
the  following  order,  to  wit  : 

"  It  is  ordered,  upon  the  finding  of  the  jury  of  the  insanity 
of  the  prisoner,  C.  D.,  that  execution  of  the  sentence  of  death 
heretofore  pronounced  upon  him  be,  and  hereby  is,  suspended 
until  a  warrant  shall  be  received  from  the  governor  of  this 
state  directing  such  execution.  And  the  said  C.  D.  is  re- 
manded to  the  custody  and  safe-keeping  of  the  said  sherifi"." 

973.  Ao  insanify  found. 

[Title.']     Indictment  for . 

As  in  last  to  *,  and  conclude ;] — is  of  sound  and  sane  mind." 

And  thereupon  the  said  A.  H.,  judge,  made  and  certified 
the  following  order,  to  wit : 

"It  is  ordered,  upon  the  finding  of  the  jury  in  these  pro- 
ceedings, that  the  said  piocfedings  be  dismissed,  without 
prejudice  to  the  execution  of  the  sentence  of  the  court 
against  the  prisoner,  C.  D." 


484  JOURNAL   ENTRIES.  [SEC.  7350- 

CHAPTER  VIII. 
NEW  TRIALS,  MOTIONS  IN  ARREST,  AND  ERROR. 

New  trials — 

974.  (Sec.  7350.)     Order  granting. 

975.  Motion  for  new  trial  overruled,  and  sentence  pronounced. 

Motions  in  arrest — 

976.  (Sees.  7353  and  5.)     Motion  granted;  order  for  recognizance. 

977.  (Sees.  7353  and  5.)     Motion  granted  ;  defendant  discharged. 

Error — 

978.  (Sec.  7359.)  Order  fixing  day  for  return  of  summons  in  error. 

979.  (Sec.  7360.)  Judgment  affirmed. 

980.  (Sec.  7360.)  Judgment  reversed. 

981.  (Sec.  7360.)  In  capital  case,  judgment  affirmed,  and  day  fixed  for 

execution. 

982.  (Sec.  7362.)     Order  by  court  of  error  suspending  sentence  in  capital 

case. 

983.  (Sec.  7362-3.)     Same,  in  other  case. 

New  trial — 

974.  (Sec.  7350.)     Order  granting  new  trial. 
[  Title.']     Indictment  for . 

This  cause  being  heard  on  the  motion  for  a  new  trial,  the 
court,  on  consideration,  and  for  good  cause  shown,  grant  the 
same.  The  said  verdict  is  acccordingly  vacated,  and  a  new 
trial  granted. 

975.  3Iotion  for  new  trial  overruled,  and  sentence  pronounced. 
[Title.] 

This  cause  came  on  this  day  to  be  heard  on  the  motion  for 
a  new  trial,  and  the  court,  after  full  consideration,  overrule 
the  same. 

And  thereupon,  the  defendant  being  in  court  in  the  cus- 
tody of  the  sheriff,  was  informed  by  the  court  of  the  verdict 
of  the  jury,  and  inquired  of  if  he  had  any  thing  to  say  why 
judgment  should  not  be  pronounced  against  him,  and  hav- 


-7360.]  NEW   TRIAL,    ETC.  485 

ing  nothing  but  what  he  liath  ah-eady  said  [or,  showing  no 
good  cause  wliy  judgment  shouhl  not  be  pronounced]  : 

It  is  therefore  adjudged  by  the  court,  etc. 

[For  forms  of  sentence,  see  pages  479  and  480.] 

Motions  in  arrest — 

97G.  (Sees.  7353  and  7355.)     Motion  granted,  and  order  for  re- 
cognizance. 

[  Title.]     Indictment  for . 

This  cause  being  heard  on  the  motion  in  arrest  of  judg- 
ment, the  court,  upon  good  cause  shown,  allow  the  same. 

And  it  appearing  from  the  evidence  that  there  is  sufficient 
reason  to  believe  said  defendant  guilty  of  an  offense,  it  is  or- 
dered that  he  enter  into  a  recognizance,  with  sufficient  secur- 
ity, conditioned  for  his  appearance  on  the  first  da  y  of  the 
next  term  of  this  court ;  or  in  default  thereof  that  he  be 
committed  to  the  jail  of  the  county. 

977.  (Sees.  7353  and  7355.)     Motion  granted,  and  defendant  dis- 

charged. 

[Title.']     Indictment  for . 

This  cause  being  heard  on  the  motion  in  arrest  of  iudof- 
ment,  the  court,  upon  good  cause  shown,  allow  the  same. 

It  is  thereupon  further  ordered  that  said  defendant,  C.  D., 
be  discharged. 

Error — 

978.  (Sec.  7359.)     Order  fixing  day  for  return  of  summoris  in 

error. 

[Title.]     Indictment  for . 

On  motion  of ,  and  good  cause  shown,  it  is  ordered 

that  summons  in  error  in  this  case  be  returned  on  the  

(lay  of ,  18—. 

979.  (Sec.  7360.)     Judgment  affirmed. 
[Title.]     Error. 

This  cause  came  on  for  hearing  upon  the  petition  in  error, 
the  transcript,  and  the  original  papers  and  pleadings'  from 

'  See  sec.  7358. 


486  JOURNAL    ENTRIES.  [SEC.  7360- 

the  Court  of  Common  Pleas  of County,  and  was  argued 

by  counsel ;  on  consideration  whereof,  the  court  find  there 
IS  no  error  apparent  on  the  record  in  said  proceedings  and 
judgment. 

It  is  therefore  considered  by  the  court  that  the  judgment 
aforesaid  be,  and  the  same  hereby  is,  afiirmed  ;  and  that  the 
defendant  in  error  recover  from  the  plaintiff  in  error  his  costs 
herein  expended,  taxed  at  $ } 

980.  (Sec.  7360.)     Judgment  reversed. 
\_Title.'\     Error. 

This  cause  came  on  for  hearing  upon  the  petition  in  error, 
the  transcript,  and  the  original  papers  and  pleadings  from  the 

Court  of  Common  Pleas  of County,  and  was  argued  by 

counsel ;  on  consideration  whereof,  the  court  find  that  there 
is  error  apparent  upon  the  face  of  the  record^  to  the  preju- 
dice ^  of  the  plaintifl:"  in  error. 

It  is  therefore  considered  by  the  court  that  the  judgment 
aforesaid  be  reversed  and  held  for  naught. 

It  is  thereupon  further  ordered  that  said  defendant  be  dis- 
charged. 

[Or,  It  is  thereupon  further  ordered  that  said  defendant  be 
granted  a  new  trial.] 

981.  (Sec.  7360.)     In  capital  case,  jadgnieiit  affirmed  and  day 

fixed  for  execution. 

ITitlc.']     Error. 

As  in  No.  979  to  end,  and  continue:'] — 

And  the  day  fixed  for  the  execution  of  the  said  C.  J),  hav- 
ing passed,  the  court  appoint  tlie day  of ,  18 — ,  be- 
tween the  hours  of and  ,  as  the  time  for  carrying 

out  the  former  sentence  of  the  Court  of  Common  Pleas  of 

County  in  this  case.     And  it  is  ordered  that  a  warrant 

be  issued  accordingly. 

1  As  to  carrying  sentence    into  execution  see  sec.  7324,  and  Entrj'  No.  9G8. 

"^  Error  must  appear  affirmatively  on  the  face  of  the  record.  Bartlett  v.  State, 
28  Ohio  St.  669;   Bond  v.  State  23  Ohio  St.  349. 

'Also,  that  it  was  to  the  prejudice  of  the  party  seeking  to  take  advantage  of 
it.     Berry  r   State,  ni  Ohio  St.  219;   I'antwell  v.  State,  18  Ohio  St.  477. 


-7367.]  NEW  TRIAL,  ETC.  487 

982.  (Sec.  7362,  82  0.  IT.  39.)     Order,  by  court  of  error,  sus- 

pemliiig  sentence  in  capital  case. 

[Title.]     Error. 

On  motion  of  the  plaintiii'  in  error,  by  his  attorney,  and 
notice  thereof  liaving  been  given  to  the  prosecuting  attorney 

of county,  and  upon  good  cause  shown,  it  is  this  day 

ordered  by  a  majority  of  the  judges  of  this  court  that  the 
execution  of  the  sentence  of  the  Court  of  Common  Pleas  of 

County,  against  the  defendant  herein,  be  suspended  for 

[name  time'\. 

983.  (Sec.  7362-3.)      Order,  by  court  of  error,  suspending  sen- 

tence in  cases  other  than  capital. 

[Title.]     Error. 

On  motion  of  the  plaintiff  in  error  herein,  it  is  ordered 
that  execution  of  the  sentence  of  the  court  below,  in  this 
case,  be  suspended  until  [name  time]. 

And,  in  case  of  misdcmeayior,  add .-] — upon  defendant  enter- 
ing into  recognizance,  according  to  law,  in  the  sum  of  $ . 


488  JOURNAL  ENTRIES. 


OATHS. 

I.  Of  the  foreman  of  the  grand  jury.  ; 

II.  Of  the  other  grand  jurors. 

III.  Of  the  petit  jury. 

IV.  Affirmation. 

I.  Of  the  foreman  of  the  grand  jury  [See  sec,  7191.] — 
You  solemnly  swear,  in  the  presence  of  Almighty  God, 

that,  saving  yourself  and  fellow  jurors,  you,  as  foreman  of 
this  grand  inquest,  shall  diligently  inquire,  and  true  present- 
ment make,  of  all  such  matters  and  things  as  shall  be  given 
you  in  charge,  or  otherwise  come  to  your  knowledge,  touch- 
ing the  present  service.  The  counsel  of  the  state,  your  own, 
and  your  fellows,  you  shall  keep  secret,  unless  called  on  in  a 
court  of  justice  to  make  disclosures;  and  you  shall  present  no 
person  through  malice,  hatred,  or  ill-will,  nor  shall  you  leave 
any  person  unpresented  through  fear,  favor,  or  affection,  or 
for  any  reward  or  hope  thereof;  but,  in  all  your  present- 
ments, you  shall  present  the  truth,  the  whole  truth,  and  noth- 
ing but  the  truth,  according  to  the  best  of  your  skill  and  un- 
derstanding. 

II.  Of  the  other  grand  jurors  [See  sec.  7192.] — 

The  same  oath  which  A.  B.,  your  foreman,  hath  now  taken 
before  you  on  his  part,  you,  and  each  of  you,  shall  well  and 
truly  observe  and  keep  on  your  respective  parts.  And  this 
you  swear  in  the  presence  of  Almighty  God. 

III.  Of  petit  jury  [See.  sec.  7281.] 

You,  and  each  of  you,  do  solemnly  swear  that  you  shall 
well  and  truly  try,  and  true  deliverance  make,  between  the 


OATus.  489 

State  of  Ohio  and  the  prisoner  at  the  bar,  C.  D. ;  so  help  you 
God. 

IV.  Affirmation  [See  sec.  7282.] — 

"  You  do  solemnly  and  sincerely  affirm,"  etc.,  and  close 
with  "  this  you  do  as  you  shall  answer  under  the  pains  and 
penalties  of  perjury." 


490  JOURNAL   ENTRIES. 


suPEnioii  COURT  OF  ciisrciisrisrATi. 


So  far  as  the  jurisdiction  cf  this  court  is  the  same  as  the  common 
pleas,  the  same  journal  entries  are  used.  Those  here  given  are 
such  only  as  are  not  used  in  that  court. 

Error  from  special  to  general  term — 

By  sec.  -499(2,  82  O.  L.  23,  the  jurisdiction  of  the  general  term  as 
a  court  of  error  is  restored  as  it  formerly  existed.  Exceptions  may 
be  taken  in  special  term  in  the  same  manner  as  in  the  court  of  com- 
mon pleas,  for  which  see  page  91.  The  bill  of  exceptions  will  be  in 
form  as  in  the  common  pleas,  page  493  et  seq.,  and  the  entry  allow- 
ing the  bill  of  exceptions  in  the  foim  of  entry  No.  192,  p.  91.  But 
it  is  not  necessary  to  file  a  transcript  of  the  proceedings,  the  peti- 
tion in  error  being  heard  upon  the  original  files,  pleadings,  and 
proceedings  in  special  term. 

Eeservation  from  special  to  general  term  ;  BILL  OF  evidence — 
When  evidence  is  taken  in  special  term,  and  the  case  reserved  on 
the  same  for  decision  in  general  term,^  a  bill  of  the  evidence  is 
made  up  and  certified  by  the  judge  who  tried  the  case,  to  be  cor- 
rect, and  is  then   filed. 

This  bill  is  in  no  sense  a  bill  of  exceptions,  and  can  not  be  made 
part  of  the  record,^  until,  it  comes  to  be  a  part  of  the  bill  of  excep- 
tions from  general  term  to  the  supremo  court.  No  journal  entry  is 
required  of  its  filing,  except  as  it  is  noticed  in  the  entry  of  reserva- 
tion. 

The  form  of  the  bill  of  evidence  may  be  as  follows  : 

BILL  OF  EVIDENCE. 

Superior  Court  of  Cincinnati. 

A.  B.] 

vs.     V  Bill  of  Evidence. 
C.  D.J 
Be  it  remembered,  that  on  the  trial   of  this  action  at  the 
term,  18 — ,  of  the  Superior  Court  of  Ciiiciiinati,  before 


iBy  virtue  of  sec.  503. 

2 But  see  qiuere  in  the  case  of  Newcomb  v.  Cincinnati  Ins.  Co.,  22  Ohio,  382, 
385. 


SUPERIOR  COURTS.  491 

the  Hon.  M.  F.F.,  judge,  theplaiiitifF,  to  maintain  the  issue  on 
his  part,  called  A.  11.  as  a  witness,  who,  being  duly  sworn, 
testified  as  follows :  [Give  a  full  statement  of  the  testimony  in 
narrative  form,  or  set  out  categorically  the  questions  and  answers, 
as  deemed  best.'\ 

And  the  plaintiff,  further  to  maintain  the  issue  on  his  part, 
offered  in  evidence  the  deposition  of  M.  X.,  which  was  read, 
and  which  is  hereto  attached  and  made  part  hereof,  marked 
"Exhibit  A;"  and  also  offered  in  evidence  the  contract  be- 
tween, etc.  [or  other  paper],  and  the  agreements  of ,  18 — , 

thereto  attached,  which  is  hereto  attached  and  made  part 
hereof,  marked  "  Exhibit  B."  ^ 

And  thereupon  the  plaintiff  rested. 

And  the  defendant,  to  maintain  the  issue  on  his  part,  of- 
fered, etc.  [in  same  form  as  above.'] 

And  thereupon  the  defendant  rested. 

And  thereupon  the  plaintiff,  further  to  maintain,  etc, 

And  thereupon  the  plaintiff  rested. 

And  the  aforesaid  is  all  the  evidence  offered  in  the  case  by 
both  plaintiff  and  defendant. 

It  is  hereby  certified  by  me,  one  of  the  judges  of  the  Su- 
perior Court  of  Cincinnati,  that  the  above  and  foregoing  is 
a  full  and  correct  statement  of  all  the  evidence  by  either 
party  upon  the  hearing  of  this  case  adduced. 

M.  F.  F.,        [seal.] 
Judge  of  the  Superior  Court  of  Cincinnati. 
[Date.] 

The  entries  of  reservation  may  be  as  follows  : 

1  Exceptions  taken  and  objections  made  to  any  part  of  the  evidence  may  be 
put  in  the  certificate  in  the  same  form  as  in  a  bill  of  exceptions.    See^os^. 


492  JOURNAL  ENTBIES. 

984.  (Sec.  503,  82  O.  L.  24.)     Entry  of  reservation  on  hill  of  evi- 

dence} 

[Title.'] 

This  cause  coming  on  for  hearing  on  the  pleadings  and  evi- 
dence, and  the  evidence  being  heard,  and  the  court  finding 
that  important  questions  of  law  \or  fact,  or  of  law  and  fact], 
arise  in  the  case,  it  is  hereby  ordered  that  the  same  be,  and 
they  hereby  are,  reserved  and  adjourned,  upon  the  certified 
bill  of  evidence  filed  herein,  for  the  decision  of  the  court  in 
general  term. 

985.  (Sec.  503, 82  0,  L.  24.)     Entry  of  reservation  on  motion,  etc} 
[Title.] 

This  cause  coming  on  for  hearing  on  the  motion  for  a  new 
trial  [or  other  questions],  and  it  appearing  to  the  court  that  im- 
portant questions  of  law  [or  fact,  or  of  law  and  fact]  arise  in 
the  case  upon  said  [motion],  it  is  hereb\'  ordered  tnat  the  same 
be,  and  they  are  hereby,  reserved  and  adjourned  for  the  decis- 
ion of  tlie  court  in  general  term. 

Kemoval  to  court  of  common  pleas — 

986.  (Sec.  502.)     Order  for  removal. 
[Title.] 

On  motion  of  the ,  and  it  appearing  to  the  court  that 

all  of  the  judges  of  the  superior  court  are  interested  in  the 
event  of  this  action,  it  is  hereby  ordered  that  the  case  be  re- 
moved for  trial  into  the  Court  of  Common  Pleas  of  this 
county. 

Entries  in  general  term — 

The  following  formula  may  be  used,  in  making  entries  in  general 
term,  otherwise  the  entries  will  be  the  same  as  in  the  circuit  and 
common  pleas  courts. 

FORMULA  IN  RESERVED  CASES. 

[Title.] 

This  cause  came  on  for  hearing  as  reserved  from  special 
term  upon  the  certified  bill  of  evidence  herein  [or  upon  tiie 

'It  is  customary  to  file  a  certified  copy  of  this  entry  in  general  term. 


SUPERIOR  COURTS.  492a 

motion    for   new   trial,  or   otherwise],    and    on    consideration 
thereof,  etc.     Continue  as  in  similar  cases  in  other  courts. 

FORMULA  IN  ERROR  CASES. 

[Title.'] 

Tills  cause  came  on  to  bo  heard  iii>oa  tlie  petition  in  error, 
the  orig'iiial  pleadings,  and  papers,  and  was  argued  by  coun- 
sel ;  on  consideration  whereof  the  court  find,  etc.  [Coritinue  as 
in  similar  cases  in  the  circuit  court.] 

For  forms  of  judgmciil  affirmed  see  Nos.  821  and  822. 

Foi'  forms  of  judi^mcnt  reversed  see  No.  815,  et  seq.  But  in  case 
final  judgment  is  entered  in  general  term  tbe  case  need  not  be  re- 
manded for  execution. 

Error  from  gp;neral  term  to  tfie  supreme  court. 

Final  orders  and  judgments  of  tiie  Superior  Court  of  Cincinnati 
are  reviewed  in  the  same  manner  as  those  of  the  circuit  courts. 
See  sec.  503,  82  O.  L.  24. 

If  the  case  went  from  special  to  general  term  on  error,  no  further 
bill  of  exceptions  will  be  I'cquired,  the  evidence  being  already  put 
on  record,  and  the  record  in  general  term  showing  the  action  taken 
there. 

If  the  case  wont  from  special  to  general  term  by  reservation,  the 
bill  of  exceptions  for  the  supreme  court  will  be  made  up  as  if  the 
general  term  were  the  original  court,  the  certified  bill  of  evidence 
with  its  exhibits  being  annexed  to.  and  made  part  of,  the  bill  of 
exceptions.     See  form  on  page  -199. 


A.PI>EN^DIX. 


The  following  is  given  as  a  general  form  for  a  hill  of  ex- 
ceptions, containing  the  more  frequent  kinds  of  evidence  in- 
troduced, exceptions  and  rulings  of  the  court. 

BILL    OF    EXCEPTIONS. 

1.  Witness  offered;   testimony  given. 

2.  Question  objected  to;    objection  sustained. 

3.  Testimony  ruled  out. 

4.  Deposition  offered  in  evidence;  part  objected  to. 

5.  Affidavit  offered  in  evidence. 

6.  Contract  or  otiier  paper  offered  in  evidence. 

7.  Deed  or  otber  paper  offered  in  evidence  and  rejected. 

8.  Wit!iess  or  other  evidence  offered  and  rejected. 

9.  ]i(H'ord  of  anotii<!r  case  given  in  evidence. 

10.  Defendant's  evidence. 

11.  Plaintiffs  further  evidence. 

12.  (yharg(^  requested  by  party  and  given. 

13.  Charges  I'equested  by  party  and  refused;  exceptions. 

14.  Charge  requested  by  party  and  modified. 

15.  Charge  given  by  the  court  and  excepted  to. 

16.  Verdict  and  judgment ;  motion  fur  new  trial  overruled,  and  allowance 

of  the  bill. 

FORM. 

State  of  Ohio,  Hamilton  County,  Court  of  Common  Pleas* 

A.  B.-j 

vs.  .  vBill  of  Exceptions. 
C.  D.j 

Be  it  remembered  that  on  the  trial  of  this  action  at  the 

term,  18 — ,  of  the court  of ,  Hon.  J.  D.,  judge,  pre- 
siding, the  plaintiff  to  maintain  the  issue  on  his  part  called  as 
a  witness 

1.  A.  R., 
who  being  duly  sworn,  testified  as  follows  : 

\_Give  a  full  statement  of  the  testimony  in  narrative  form,  show- 
ing the  direct,  cross,  and  re-examination,  or  set  out  categorically 
th(  questions  and  answers,  as  deemed  best.^] 


*  It  is  not  proper  practice,  in  taking  a  bill  of  exceptions,  to  set  out  the 
testimony,  unless  the  objection  be  to  the  admission  of  irrelevant  testi- 
mony. The  proper  practice  is  to  set  out  the  facts  proven.  Nye  v.  Watt, 
W.  437. 

If  the  testimony  is  written  out  separately,  and  attached  as  an  exhibit 


494  JOURNAL    ENTRIES. 

2.  And  at  this  point  in  the  examination  ^  the  plaintiff,  pro- 
posing to  prove  that,  etc.,^  asked  the  following  question  of  the 
witness  A.  R.,  to  wit : 

[^State  question.'] 
and  the  defendant  objecting  to  said  question,  the  court  sus- 
tained the  objection,  and  the  plaintiff  at  the  time^  excepted* 
to  said  ruling  of  the  court,  on  the  ground  that,  etc.* 

to  the  bill,  and  contains  any  statement  reciting  rulings  of  the  court  in 
admitting  or  excluding  evidence,  it  should  be  referred  to  as  containing 
"the  testimony  with  the  exceptions  of  counsel,  and  the  rulings  of  the 
court  in  admitting  and  excluding  evidence."  See  Dunn  v.  State,  23  Ohio 
St.  167. 

When  the  statute  requires  certain  examination  of  witnesses  to  be  re- 
corded, they  are  a  legitimate  part  of  the  transcript  or  record  of  the  pro- 
ceedings, without  any  bill  of  excej^tions  setting  them  out.  Howell  v. 
Fry,  19  Ohio  St.  55G. 

^  The  bill  must  show  as  much  of  the  evidence  as  to  show  the  true  state 
of  the  case  at  the  time,  and  the  right  to  introduce  the  evidence.  Landis 
V.  Dayton,  W.  659. 

*  There  should  be  a  statement  of  what  it  is  proposed  to  prove,  when  a 
question  is  asked  which  is  objected  to,  and  the  objection  sustained,  and 
an  exception  taken.     Gandolfo  v.  State,  11  Ohio  St.  114. 

"Where  only  the  question  excluded  and  the  answer  are  set  out  in  the 
bill  of  exceptions,  and  no  other  evidence  is  stated,  so  that  the  connection 
of  the  evidence  claimed  to  be  competent  might  be  seen,  and  the  court 
of  eri-ors  placed  in  a  position  to  decide  whether  the  evidence  was  prop- 
erly rejected,  the  exception  can  not  be  allowed.  Coston  v.  Page,  9  Ohio 
St.  397. 

3  A  decision  or  ruling  of  a  court,  not  excepted  to  at  the  time,  can  not 
be  assigned  for  error  in  a  reviewing  court.  Code,  sec.  5298.  Templeton 
V.  Kraner,  24  Ohio  St.  554,  564. 

And  it  must  appear  from  the  bill  of  exceptions  that  an  exception  was 
taken.     Geauga  Iron  Co.  v.  Street,  19  Ohio,  oUO. 

*  All  the  errors  relied  on  must  be  assigned  in  the  bill  of  exceptions;  for 
the  court  of  error  will  not  go  beyond  those  assigned.  Humiston  v.  An- 
derson's Adm'rs,  15  Ohio,  556,  559;  Randall  v.  Turner,  17  Ohio  St.  262; 
Levi  V.  Daniels,  22  Ohio  St.  38. 

=  Whether  it  is  necessary  or  not  to  state  the  ground  of  this  and  every 
exception  taken,  attorneys  must  judge,  until  the  Suprenie  Court  speaks 
more  decidedly  on  the  point.  In  the  case  of  Adams  v.  The  State,  25 
Ohio  St.  584.  587.  the  dictum  of  the  court  leans  very  strongly  that  way. 


BILL   OF   EXCEPTIONS.  ^^^5 

3.  And  thereupon  the  defendant  moved  the  court  to  rule 
out  80  much  of  the  testimony  of  A.  R.  as  [set  forth  par<]  and 
the  court  on  consideration  granted  said  motion,  and  the  plaint- 
iff at  the  time  excepted  to  said  ruling  of  the  court.* 

4.  And  the  plaintift',  farther  to  maintain  the  issue  on  his 
part,  offered  in  evidence  and  read  the  deposition^  of  M.  I>r., 
which  is  hereto  attached  and  made  a  part  hereof,^  marked 
"  Exhibit  A." 

The  defendant  by  his  counsel  objected  when  the  same  was 
ofiered  to  the  admission  of  the  following  portion  of  the  depo- 
Bition,  to-wit : 

"  Question,  etc.  Answer,  etc.,"  [or  specify  in  any  way  the 
•part  objected  ^o],  which  objection  was  overruled  [or  sustained] 
by  the  court,  and  said  testimony  admitted  [or  ruled  out],  to 
which  ruling  of  the  court  and  admission  [or  rejection]  of  tes- 
timony, the  said at  the  time  excepted. 

5.  The  plaintiff  also  offered  in  evidence  and  read  the  affida- 
vit? of  N.  P.,  which  is  hereto  attached  and  made  part  hereof, 
markfcd  '^  Exhibit  \^r 

6.  And  the  plaintiff  further  to  maintain  the  issue  on  his  part 
also  offered  in  evidence  the  contract  between,  etc.  [or  other 
paper"]  and  the  agreements  of ,  18 — ,  thereto  attached, 

^  Where  the  ruling  out  of  testimony  is  assigned  for  error,  the  bill  must 
show  as  much  of  the  evielence  as  to  show  the  true  state  of  the  case  at  the 
time,  and  the  right  to  introduce  the  evidence.     Landis  v.  Dayton,  W.  659. 

^A  reference  to  a  deposition  on  file,  merely  stating  the  deponent's 
name,  or  giving  some  artificial  mark  on  the  deposition  itself,  is  not  suflS- 
cient ;  it  must  be  attached  to  or  made  part  of  the  bill  of  exceptions. 
Wells  V.  Xartin,  1  Ohio  St.  3SG  ;  Hicks  v.  Person.  19  Ohio,  446.  See  note 
1,  p.  496. 

^The  caption  and  authentication  of  depositions  should  not  be  copied 
into  the  record,  unless  seme  questions  arise  in  them.  Nye  v.  Watt,  W. 
537. 

*  An  affidavit  can  not  be  noticed  on  error,  unless  brought  into  the  record 
by  the  bill  of  exceptions.  And  even  where  affidavits  read  on  the  hear- 
ing of  a  motion  are  copied  into  the  record  by  the  clerk,  without  any  bill 
of  exceptions  taken  for  that  purpose,  they  can  not  be  considered  on  pr> 
ceedings  in  error.     Sleet  v.  Williams,  21  Ohio  St.  82. 

See  also  note  1,  p.  496. 


496  JOURNAL   ENTRIES. 

which  is  hereto  attached  and  made  part  hereof,^  marked  "  Ex- 
hibit B." 

7.  And  the  plaintiff  further  to  maintain  the  issues  on  his 
part  offered  to  give  in  evidence  a  deed  from,  etc.  [or  any 
paper],  and  the  defendant  objecting  to  the  same  being  taken  in 
evidence,  tlie  court  refused  to  allow  the  same  to  be  read,^  to 
which  ruling  the  plaintiff  at  the  time  excepted ;  which  said 
paper  is  hereto  attached  and  made  part  hereof,  marked  "Ex- 
hibit C." 

8.  And  further  the  plaintiff  offered  the  testimony  of  IN".  L. 
to  prove  that,  [or  offered  to  produce  evidence  tending  to  prove 
that,]  etc.  [state  the  facts  which  such  testimony  tends  to  prove,^ 
or  set  forth  the  testimony],  and  defendant  objecting,  the  court 
refused  to  allow  him  to  testify  in  the  case  [or  refused  to  receive 
the  said  evidence]  for  the  reason  that,  etc.,*  to  which  ruling  of 
the  court  the  plaintiff  at  the  time  excepted. 

^  Papers  not  set  out  in,  or  attached  to,  the  bill  of  exceptions,  or  in  some 
way  so  connected  therewith  as  to  make  them  a  part  thereof,  can  not  be 
taken  as  parts  of  the  bill.  Wells  v.  Martin,  1  Ohio  St.  386 ;  Busby  v. 
Finn,  1  Ohio  St.  409;  Baker  v.  Scovill,  Superior  Court  of  Cincinnati,  Gen- 
eral  Term,  1870,  2  C.  S.  C.  R.  37. 

In  the  case  of  Busby  v.  Finn,  supra,  the  court  (Thurman,  J.)  said  :  "  We 
do  not  mean  to  say  that  it  is  indispensable  to  copy  into,  or  actually  at- 
tach to,  a  bill  of  exceptions  every  paper  making  part  of  it,  though  Hicks 
V.  Person,  19  Ohio  446,  seems  to  require  this.  Such  a  description  may  be 
given  of  an  exhibit  as  to  leave  no  doubt  of  its  identity  when  found 
among  the  papers." 

As  to  amending  a  bill  of  exceptions  in  annexing  papers,  see  ante  p. 
91. 

*  To  justify  the  reversal  of  a  judgment,  where  the  error  complained  of 
is  the  rejection  of  evidence,  its  materiality  must  affirmatively  appear 
upon  the  face  of  the  record.     Courtright  v.  Staggers,  15  Ohio  St.  511. 

^  When  an  exception  is  taken  to  the  ruling  of  a  court  in  rejecting  tes- 
timony offered  by  the  party  excepting,  it  is  riot  necessary  that  the  bill  of 
exceptions  should  set  out  the  testimony  offered  and  rejected;  it  is  suffi- 
cient, in  such  case,  to  state  the  facts  which  such  testimony  tended  to 
prove.  Himrod  Furnace  Co.  v.  Cleveland  and  Mahoning  R.  R.  Co.,  2J 
Ohio  St.  451. 

*The  record  should  show  upon  what  ground  the  witness  was  rejected. 
Armstrong  v.  Clark,  17  Ohio,  495. 


BILL    OF   EXCEPTIONS.  497 

9.  And  the  jjlaintifF  further  to  maintain  the  issuf"  oii  his 
^art  oflered  in  evidence  the  record  of  the  case  of  A.  1    against 

M.  N.,  numbered in  the  court  of ,  t    copy  of 

which  is  hereto  attached  and  made  part  hereof,^  map  ^ed  "  Ex- 
hibit D." 

And  thereupon  the  plaintifi"  rested  his  case. 

10.  And  the  defendant,  to  maintain  the  issue  on  his  part, 
ofiered,  etc.  [in  the  same  form  as  above.'] 

And  thereupon  the  defendant  rested. 

11.  And  thereupon  the  plaintiff  further  to  maintain,  etc. 

And  thereupon  the  plaintiff  rested. 

And  the  foregoing  is  all  the  evidence  given  or  offered  by 
either  side  upon  the  trial  of  the  case,^ 

12.  And  at  the  close  of  the  testimony,  and  after  the  con- 
clusion of  the  argument  of  the  respective  counsel  [or  before 
the  argument],  the  plaintiff'  requested  the  court  to  give  the 

1  .See  note  1,  p.  496,  as  to  making  papers  part  of  a  bill  of  exceptions  in 
general. 

Thurman,  J.,  in  commenting  on  the  case  of  Busby  v.  Finn,  supra,  said: 
"  The  bill  states  that  '  the  defendants  gave  in  evidence  the  record  of  the 
judgment  in  Marion  county,  hereto  attached,  marked  A,'  but  no  such 
record  is  attached,  or  marked  as  filed,  or  mentioned  in  the  pleading.^,  or 
referred  to  in  any  return  or  certificate  of  the  clerk  of  the  court.  It  is 
therefore  manifest  that  rmj/  record  of  ayv/  judgment  of  an>/  court  in  Ma- 
rion county,  and  between  awy  parties,  satisfies  the  description  in  the  bill 
of  exceptions,  provided  it  is  marked  A;'  and  held  that  the  evidence  was 
not  properly  before  the  court. 

-To  entitle  the  party  to  review,  the  bill  of  exceptions  must  show  upon 
its  face  that  it  contains  all  the  evidence  given  upon  the  trial,  and  acted 
upon  by  the  court  below.  Ide  v.  Churchill,  14  Ohio  St.  372;  Tilton  v. 
Morgaridge,  12  Ohio  St.  98;  Cantwell  v.  State,  18  Ohio  St.  477;  Eastman 
v.  Wright,  4  Ohio  St.  156 ;  Wilson  v.  State,  2  Ohio  St.  319;  Farmer's  Col 
lepe  V.  Butler,  18  Ohio  St.  418. 


498  JOURNAL    ENTRIES. 

following  charges  to  the  jury,  each  of  which  tho  court  gave, 
to  wit : 

[Set  out  in  full.'] 

13.  And  at  the  same  time  the  plaintiff  asked  the  court  to 
give  the  following  charges  to  the  jury,  each  of  which  the 
court  refused  to  give  :  to  each  of  which  refusals  the  plaintiff 
then  and  there  excepted.     To  wit : 

[Set  out  in  full.'] 

14.  And  at  the  same  time  the  plaintiff  asked  the  court  to 
give  the  following  charge  to  the  jury  : 

[Set  out  charge.] 

which  charge  the  court  refused  to  give,  but  gave  it  modified 
as  follows : 

[Set  out  charge.] 

To  which  refusal  to  give  the  charge  as  asked,  and  to  ivhich 
^.harge  as  given  the  plaintiff*  at  the  time  excepted. 

15.  And  [the  arguments  of  the  counsel  for  the  respective 
parties  being  concluded]  the  court  then  charged  the  jury  as 
is  set  forth  in  the  copy  thereof  hereto  attached  and  made 
part  hereof,^  marked  "  Exhibit  E." 

And  the  plaintiff  at  the  time  excepted  to  said  charge  as  fol- 
lows : 

1.  To  the  portion  of  the  third  paragraph  thereof,  etc. 
[set  out  specifically  the  matter  excepted  to"^],  on  the  ground 
that,^  etc. 

^  Otherwise,  it  will  not  be  regarded  as  a  part  of  ttie  record.  Hallam  v. 
Jacks,  11  Ohio  St.  692. 

2  Where  exceptions  are  taken  to  a  general  charge  given  by  the  court  to 
the  jury,  unless  the  party's  exception  points  out  specifically  the  part  or 
proposition  of  the  charge  excepted  to,  and  the  grounds  of  his  exception, 
a  reviewing  court  is  not  bound  to  take  notice  of  the  exception.  Adams 
V.  The  State,  25  Ohio  St.  584,  5S7. 

In  the  case  of  Taylor  v.  Boggs,  20  Ohio  St.,  516,  534,  counsel  for  defend 
ant  in  error  claimed  that  an  exception  in  these  words — "  to  which  charge 


BILL    OF   EXCEPTIONS.  499 

Said  "  Exhibit  E,"  and  the  said  special  charges  given  aa 
hereinbefore  stated,  comprise  all  the  charges  of  the  court  as 
given  to  the  jury  at  said  trial. 

16.  Whereupon  the  court  gave  judgment  for  the  defendant, 
[or  the  jury  retired  for  deliberation,  and  returned  a  verdict  for 
the  defendant.]  as  appears  of  record  in  the  cause;  and  the 
plaintiff  thereafter  Hied  amotion  to  setaside  the  said  judgment 
\_or  verdict]  and  for  a  ne\v  trial,  and  the  same  was  argued  by 
counsel  and  submitted  to  the  court,  which,  upon  considera- 
tion, overruled  the  same,  [and  entered  judgment  upon  said 
verdict,]  as  also  ap[)ears  of  record. 

And  the  plaintiff  thereupon  excepted  to  the  overruling  of 
said  motion,  and  presented  this  his  bill  of  exceptions,  and 
prayed  that  the  same  be  allowed,  signed,  sealed,  and  made 

part  of  the  record,  which  is  accordingly  done  this day 

of ,18—. 

[Signed,]  .J.  D., 

Judge  of  the  Court  of  Common  Pleas 

of county f  Ohio. 

BILL    OF    EXCEPTIONS 

FROM  THE  GENERAL  TERM  TO  THE  sri'RME,  COURT  IN  A  CASE  RESERVED  TO 

GENERAL  TERM. 

Superior  Court  of  Cincinnati^ 
A.  B.^ 

vs.     vBill  of  Exceptions. 
C.  D.J 

Be  it  remembered  that  on  the  trial  of  this  action  at  the 
term,  18 — ,  of  the  Superior  Court  of  Cincinnati  in  gen- 
eral term  convened,  the  said  action  came  on  to  be  heard  as 
reserved  from  special  term  upon  the  certified  bill  of  evidence, 
which  said  bill  of  evidence  with  its  showing  of  the  ruling  of 
the  court  in  special  term  in  admitting  and  rejecting  evidence, 
is  hereto  attached  and  made  part  hereof,  marked  "  Bill  of  ev 

so  given,  and  to  every  part  thereof,  the  plaintiflf  excepted  " — was  not  suffi- 
cient, because  given  in  gross.  The  court  did  not  pass  on  the  question, 
though  the  judgment  below  was  reversed.  But  in  this  case  of  Adams  v. 
The  State,  supra,  the  decision  goes  to  the  extent  of  saying  that  such  an 
exception  can  not  be  sustained,  if  any  part  or  proposition  of  the  charge 
is  good. 


500  JOURNAL   ENTRIES. 

idence,"  and  contains  all  the  testimony  of  both  parties  in  the 
action. 

And  upon  the  hearing  of  said  cause  at  general  term  the 

said  court  gave  judgment  for  the as  appears  of  record 

in  the  case-. 

The then  moved  the  court  for  a  new  trial,  which  mo- 
tion the  court  upon  consideration  overruled  as  also  appears  of 
record. 

And  the  said thereupon  excepted  to  the  overruling  of 

laid  motion,  and  presented  this  his  bill  of  exceptions,  and 
.rayed  that  the  same  be  allowed  and  made  part  of  the  record 

of  the  case,  which  is  now  accordingly  done  on  this day 

of ,  18—. 

[Signed,] 

A.  Y.,       [seal.] 
M.  H.  T.,  [seal.] 
T.  A.  0.,  [seal.] 
Judges  of  the  Superior  Court  of  Cincinnati 


BILL    OF    EXCEPTIONS.  501 

BILL    OF    EXCEPTIONS 
WHBN   THE    EVIDENCE    IS    EMBODIED    IN    AN    AGREED    STATEMENT    OF   FACTS. 

State  of  Ohio,  Hamilton  County  Court  of  Common  Pleas, 
A.  B.     ^ 

vs.         >     Bill  of  exceptions. 
C.  D.     J 

Be  it  remembered  that  at  the term,  18 — ,  of  the 

court  of ,  before  the  Hon.  J.  D.,  judge,  this  cause  came 

on  to  be  heard  upon  the  pleadings  and  the  evidence,  all  of 
which  evidence  in  behalf  of  both  plaintiff  and  defendant  is 
set  out  in  the  agreed  statement  of  facts  hereto  attached  and 
made  part  hereof,  marked  "  Exhibit  A."  ^ 

And  the  court,  after  consideration,  etc.  [conclude  as  in  other 
cases. 


The  bill  of  exceptions  from  the  District  Court  in  appealed 
cases  will  be  made  out  in  the  same  general  form  as  the  two 
above.  In  error  cases  no  other  bill  is  required  than  the  one 
used  from  the  Common  Pleas,  as  that  puts  everything  on  the 
record,  not  already  so,  up  to  that  time,  and  the  record  shows  all 
subsequent  proceedings. 

^  An  agreed  statement  of  facts,  which  constitute  the  evidence  in  a  case, 
can  not  be  regarded  as  a  special  verdict,  and  forms  no  part  of  the  record, 
unless  made  so  by  bill  of  exceptions.  Bank  of  Virginia  v.  Bank  of  Chil- 
licothe,  16  Ohio,  170. 

But  if  the  case  was  tried  on  an  agreed  statement  of  facts,  which  facts 
are  admitted  by  the  parties,  leaving  for  the  court  nothing  to  find,  and 
only  the  naked  duty  of  declaring  the  law  upon  the  given  statement  of  ad- 
mitted facts,  and  the  record  shows  that  the  parties  stipulated  that  the 
facts  should  be  taken  as  admitted,  and  judgment  entered  thereon,  ac- 
cording to  their  legal  riglits,  such  an  agreed  statement  may  be  properly 
regarded  as  a  special  verdict,  and  will  be  deemed  a  part  of  the  record 
upon  error.     Clinton  Bank  of  Columbus  v.  Ayres,  16  Ohio,  282,  287. 

Consequently,  in  the  last-mentioned  case,  no  bill  of  exceptions  is  neo 
essary,  as  the  record  shows  the  whole  case. 


502  JOUKXAL    ENITJIS. 

In  criminal  cases  the  bill  of  exceptions  is  governed  by  the 
same  rules  as  in  civil,  and  it  may  be  made  in  the  same  general 
form  It  is  more  generally  the  case,  however,  that  separate 
bills  are  put  in  for  the  several  supposed  errors  as  they  arise,  in 
criminal  than  in  civil  cases. 

But,  as  some  of  the  matters  excepted  to  are  of  a  different 
nature  from  those  found  in  civil  cases,  a  few  of  them  are  given 
in  the  following  form  as  examples.  They  may  be  put  into 
one  bill  or  made  out  separately,  as  the  attorney  deems  best. 
For  exceptions  taken  in  the  examination  of  witnesses  and  the 
charging  of  the  jury,  the  form  of  the  bill  maybe  the  same  as 
in  civil  cases. 

BILL   OF    EXCEPTIONS 
IN   CRIMINAL   OASES. 

[Heading  and  title  as  in  civil  cases^ 

Be  it  remembered  that  on  the day  of ,  a.  d.  18 — , 

being  one  of  the  days  of  the term  in   said  year  of  the 

Court  of  Common  Pleas  of county,  and  being  the  day  on 

which  this  cause  was  set  for  trial,  and  upon  the  calling  of  the 
case  for  trial,  the  defendant  objected  to  being  put  on  his  trial 
on  that  day  for  the  reason  that,  etc.  \_set  out\hnt  the  court  de- 
cided, etc.,  and  notwithstanding  the  objection  of  the  defendant 
put  him  immediately  on  trial.  To  which  decision  of  the 
court,  and  to  its  action  in  the  premises,  the  defendant  then 
excepted  as  erroneous. 

Be  it  remembered  that  afterwards,  on  the  day  above  men- 
tioned, at  the  trial  of  the  said  defendant,  while  a  jury  was 
being  impaneled  to  try  the  issue  in  said  case,  one  J.  L.  was 
called  by  the  sheriff,  and  was  sworn  and  examined  touching 
his  qualifications  to  sit  as  a  juror  upon  the  trial  of  said  cause; 
whereupon  he  testified  as  follows  \_set  out  testimony^ 

And  the  above  was  all  the  testimony  of  said  J.  L.,  whereupon 

challenge  for  cause  was  tendered  by  the which  the  court 

sustained  [or  overruled],  and  defendant  by  his  counse'  at  the 
time  excepted. 


BILL    OF    EXCEPTIONS.  503 

Be  it  remembered  that  afterwards,  on  the  day  above  men- 
tioned, betbre  the  jury  had  been  impaneled  or  sworn,  the  de- 
fendant challenged  the  array  of  the  jury  returned  by  the 
sheriff  for  the  reason  that,  etc.,  [set  oat  reasonl.  And  the  de- 
fendant in  support  of  his  challenge  called,  etc.  [set  oufj.  The 
prosecuting  attorney  then  called,  etc.  [set  out],  which  was  all 
the  testimony  adduced  upon  occasion  of  the  challenge  above 
recited.  And  thereupon  the  court  decided,  etc.,  and  overruled 
said  challenge,  to  which  ruling  the  defendant  excepted  as 
erroneous. 

And  now  the  defendant  presents  this  his  bill  of  the  several 
exceptions  by  him  taken  in  manner,  and  at  the  times,  above 
set  forth,  and  prays,  etc.  [as  in  civil  case]. 


MANDATES. 

The  mandate  from  the  court  of  error  to  the  inferior  court 
may  be  in  the  following 

FORM. 

The  State  of  Ohio,      \  District  Court, 

County.  / Term,  18—. 

To  the  honorable  the  Court  of  Common  Pleas  in  and  for  

county,  Ohio,  greeting  : 

Whereas,  in  a  certain  action  which  was  lately  heard  in  our 
said  District  Court,  wherein was  plaintiff,  and de- 
fendant, the  following was  entered  on  the  day  of 

,  18 — ,  viz  : 

This  cause  came  on  for  hearing,  etc.  [Copy  order  or  judg- 
ment in  full.] 

You  are,  therefore,  hereby  commanded,  without  delay,  to 
cause  the  said to  be  carried  into  complete  execution  ac- 
cording to  the  tenor  thereof. 

Witness,  T.  B.  D.,  clerk  of  our  said  District  Court,  and  the 
seal  thereof,  at ,  this day  of ,  A.  d.  18 — . 

[seal.]  T.  B.  D., 

Clerk. 


PRACTICE,  PLEADINGS,  AND  JOURNAL  ENTRIES 


UNDER  THE  ACT 


For  the  Restoration  of  Lost  Records. 

81   OHIO  L.  159. 


I.  Substitution   of   plkadinos,  process,  and   other  files   i\  pending  ac- 

tions— 

1.  Motion  for  leave  to  substitute. 

2.  (Sec.  5084.)     Order  substituting. 

3.  (Sec.  5084.)     Same,  when  papers  are  few. 

II.  Supplying  or  replacing  the  record  in  actions  wherein  final  judgment 

HAS  BEEN  RENDERED 

First.     From  certified  or  agreed  copy  of  record. 

4.  (Sec.  5339a,  1st,  2nd,  and  4th.)     Order. 

Second.     From  the  original  pleadings,  erdries,  papers,  etc. 

5.  (Sec.  5339a,  3d.)     Order. 

Third.     From  evidence,  when  record  and  papers  are  partially  or  totally  de- 
stroyed. 

6.  Application. 

7.  Precipe  for  summons. 

8.  Affidavit  of  non-residence. 

9.  Entry  approving  publication. 

10.  (Sec.  53396.)     Order  for  supplying,  etc. 

11.  (Sec.  53396.)     Same,  when  record  is  made  up  and  presented  to  the 

court. 

III.  ReCOPTING    ORKUNAL    PAPERS    AND    RECORDS. 

IV.  Establishing  thk  fact  of  the  existence  and  the  substance  and  effect 

OF  A  judgment,    prior  TO  THE   DE.^TRUCTIOX  OF  THE  RECORD. 

12.  Application. 

13.  (.Sec.  9076.)     Decree  finding  existence,  etc.,  of  judgment. 

V.       EsTABLI.^HING  THE  FACT  OF  THE    EXISTENCE  OF  A  LOST    MORTGAGE  OR   OTHER 
LIEN,  DEED,  OR  WILL,   AND  ITS  SUBSTANCE  AND  EFFECT. 

14.  Petition. 

15.  (Sec.  9076  and  c.)     Decree  finding  existence,  contents,  etc. 


5046  JOURNAL    ENTRIES.  [SEC.  5084- 

1.  Substitution  of  pleadings,  process,  and   other  files  in 

PENDING  ACTIONS. 

The  only  provision  relating  to  pending  actions  in  this  act  is  in  sec- 
tion 5084,  81  Ohio  L.  160,  and  is  only  an  enlargement  of  a  former 
provision.  This  section  does  not  refer  in  terms  to  pleadings  or  other 
files  being  destroyed  by  fire,  riot,  or  civil  commotion,  but,  of  course, 
is  applicable  to  such  cases  as  well  as  others ;  but  there  is  no  provision 
for  paying  the  costs  in  such  cases  out  of  the  county  treasury.  Neither 
is  there  any  statutory  provision  for  restoring  the  appearance  docket  in 
pending  cases,  except  so  far  as  the  posting  of  the  substituted  copies 
restores  it.'  When  a  copy  of  a  pleading  or  other  paper  is  filed  and 
the  original  appearance  docket  has  been  destroyed,  the  title  of  the 
case  and  the  record,  on  the  docket,  of  the  sheriff's  return  of  process 
ought  to  be  re-entered. 

Unless  all  parties  are  before  the  court  couseuting  to  the  substitu- 
tion, a  motion  should  be  filed  by  the  ])arty  applying,  which  will  come 
up  for  regular  hearing,  all  parties  to  the  action  thus  having  notice. 

1.     MOTION    FOR    LEAVE    TO    SUBSTITUTE    PLEADINGS,    ETC. 

Court  of  Common  Pleas,  Hamilton  County,  Ohio. 
A.  B.        ) 
55,026.1        vs.           y 
C.  D.  et  al.  j 
Novp-  comes  the ,  and  moves  the  court  for  leave  to  sub- 
stitute copies  of  pleadiugs,  process,  and   other  files  in  this 
action. 

Or  the  papers  to  l^e  substituted  may  be  designated  particularly. 
On  the  motion  being  granted,  the  order  may  be  made  in  the  follow- 
ing form  when  the  papers  are  numerous. 

2.  (Sec.  5084,  81  Ohio  L.  160.)     Or</er  substituting  pleadings., 

process,  etc.,  in  pending  actions. 
[Title.] 

The  pleadings,  process,  and  other  papers  filed  in  this  ac- 
tion, together  with  the  entries  upon  the  appearance  docket 

and  journal,  having  been  lost  or  destroyed,  and  the now 

presenting  to  the  court  copies  [or,  substantial  copies]  thereof, 
it  is  ordered  on  his  application  that  they  be  filed  and  entered 
instead  of,  and  substituted  for,  the  originals  as  of  the  dates 
when  such  originals  were  filed  and  entered,  as  follows,  to  wit: 

Copy  of  petition.     Original  filed  January  20,  1882. 

^  But  see  sec.  o3Z9c  as  amended  82  Ohio  L.  240,  and  j^osi,  p.  517. 


-5084.]         RESTORATION  OF  LOST  RECORDS.  504c 

Copy  of  summons  and  return.  Original  issued  January 
20,  1882.     Returned  and  filed  February  — ,  1882. 

Copy  of  demurrer  to  petition.  Original  filed  February 
25,  1882 

Copy  of  entry  overruling  demurrer.  Originally  entered 
March  4,  1882. 

Copy  of  answer  Original  filed  by  leave  of  court  April  1, 
1882.  " 

And  the  clerk  is  directed  to  enter  upon  the  appearance 
docket  the  dates  of  filing  the  originals  and  also  the  return 
shown  on  each  substituted  writ,  or  process. 

And  the  court  find  that  the  orders  and  entries  upon  the 
journal  as  originally  entered  were  in  the  words  and  figures 
following  1^01%  were  substantially  as  follows],  to  wit : 
A.  B.^ 
vs.     V 
C.  D.J 

[Copy  first  entry  in  fall.'] 

And  that  the  above  order  was  originally  entered  on  the 

day  of ,  18—. 

A.  B.] 

vs.     V 

C.  D.j 

\_Copy  second  entry  in  fnU'],  etc. 

And  that  the  above  order  was  originally  entered  on  the 
day  of ,  18—. 

It  is  unnecessary  to  make  any  further  entry  on  the  journal  of  the 
filing  of  the  separate  pleadings  and  papers,  but  they  should  each  he 
posted  on  the  ajipearance  docket  in  the  same  order  and  form  as  en- 
tered on  the  journal  in  the  above  entry,  thus : 

1885.  Feb.  6.  Min.  480.  Order  substituting  copies  of 
l)leadings,  etc.,  as  follows  : 

Copy  of  petition.     Original  filed  January  20,  1882. 

Copy  of  summons  and  return.  Original  issued  January 
20, 1882.  Returned  and  filed  February  — ,  1882.  Indorsed  as 
follows,  to  wit  [copy  the  return  indorsed  on  the  back  of  the  copy']: 

Copy  of  demurrer  to  petition.  Original  filed  February  — , 
1882. 


504ci  JOURNAL    ENTRIES.  [SEC.  5084- 

Copy  of  entry  overruling  demurrer.  Originally  entered 
March  4,  1882. 

[A7id  so  on  to  the  end  of  the  pa'pers  filed.] 

In  case  the  papers  lost  are  few,  the  entry  may  be  as  follows : 

3.  (Sec.  5084,  81  Ohio  L.  160.)     Orde?-  substituting  jjleadings, 

etc.,  in  pejiding  actions. 

ITitle.-] 

It  appearing  to  the  court  that  the  petition  filed  in  this 
action  on  the day  of ,  18 — ,  and  the  summons  is- 
sued on  the  day  of ,  18 — ,  have  been  lost  or  de- 
stroyed, together  with  the  entries  thereof  upon  the  appear- 
ance docket,  and  the  plaintiff  now  presenting  to  the  court 
copies  [or,  substantial  copies]  thereof,  it  is  ordered  on  his 
motion  that  they  be  filed  and  substituted  for  the  originals,  as 
of  the  dates  when  such  originals  were  filed  and  issued. 

II.     Supplying  or  replacing  the  record  in  actions  wherein 

FINAL  JUDGMENT  HAS  BEEN  RENDERED. 

By  the  "  record"  referred  to  in  sections  5339a  to  5339c,  inclusive, 
of  the  act  is  evidently  meant,  not  the  appearance  docket  or  journal 
entries,  but  the  final  record  of  the  case  required  by  sections  5332,  3, 

4,  5,  and  8  of  the  Revised  Statutes. 

The  proceedings  under  the  above  sections  should  be  in,  and  under 
the  number  of,  the  original  case. 

First.     From  certified  or  agreed  copy  of  record. 

When  the  record  can  be  restored  under  the  first,  second,  or  fourth 
subdivision  of  section  5339a,  the  court  proceedings  are  simple,  and 
the  application  may  be  by  motion,  as  in  pending  cases.  The  entry  as 
follows : 

4.  (Sec.  5339a,  1st,  2nd,  and  4th,  81  Ohio  L.  160.)  Order 
for  supplying  a  lost  record  by  certified  or  agreed  copy. 

[Title.'] 

It  appearing  that  the  record  in  this  case  was  lost  or  de- 
stroyed in  the  burning  of  the  court-house  in  this  county,  and 

the now  presenting  to  the  court  a  certified  copy  thereof 

[or,  a  certified  copy  of  the  record  thereof  in  the  Supreme 
Court ;]  [or,  a  substantial  copy  thereof,  agreed  to  and  signed 


-5339cf.]        RESTORATION  OF  LOST  RECORDS.  504e 

by  all  the  parties  to  the  action,  or  their  representatives  or 
attorneys],  thereupon,  on  his  application,  it  is  ordered  that 
the  lost  record  be  supplied  and  replaced  by  the  copy  afore- 
said ;  and  that  said  cop}'  be  recorded  by  the  clerk  in  place 
of  the  original.  And  it  is  ordered  that  the  costs  thereof 
be  [)aid  out  of  the  county  treasury. 

Second.     From  the  original  pleadings,  entries,  papers,  etc. 

Uuderthc  third  subdivision  of  section  5339a,  it  is  necessary  to  make 
a  new  record  from  the  materials  from  wiiich  the  original  was  made. 
The  applieation  in  this  case  may  also  be  by  motion,  as  in  pending 
actions.     The  entry  as  follows  : 

5.  (Sec.  5339^,  3rd.)  Order  for  restoring  a  lost  record  from 
the  original  papers  in  the  case. 

[Title.] 

It  appearing  that  the  record  in  this  case  was  lost  or  de- 
stroyed in  the  burning  of  the  court-house  in  this  county,  and 

the now  presenting  to  the  court  the  original   pleadings, 

entries,  and  other  papers  and  files  in  the  case,  thereupon  it 
is  ordered  on  his  application  that  the  record  so  lost  be  sup- 
plied and  replaced  by  a  new  record  thereof,  to  be  made  by 
the  clerk  from  such  original  papers  in  the  same  manner  as 
in  case  of  the  original  record,  and  that  the  costs  thereof  be 
paid  out  of  the  county  treasury. 

Third.     From  evidence,  when  record  and  papers  are  partiaUy  or 
icholhj  destroyed. 

In  the  above  case,  under  section  53396  much  difficulty  is  experienced 
in  restoring  the  record,  and  considerable  diversity  in  practice  has  ex- 
isted. The  application  should  set  forth  the  substance  of  the  record  so 
lost  or  destroyed,  and  be  verified  in  the  manner  provided  for  the  veri- 
fication of  pleadings  in  a  civil  action,  and  summons  must  issue  and 
service  be  made  upwu  all  persons  interested  in,  or  affected  by,  the 
in-iginal  judgment  or  final  entry  in  the  manner  provided  by  law  for 
the  cDmmeucement  of  civil  actions.  This  application  should  he  made 
in  the  original  case,  under  the  original  number,  as  it  is  a  "  proceeding,'' 
and  not  an  action,  and  much  confusion  will  be  avoided  by  keeping  the 
proceedings  together.     No  further  pleadings  are  permitted. 

The  application  is  very  important,  as  in  it  the  whole  case  must  be 


504/  JOURNAL  ENTRIE8.       [Sec.  4339a- 

stated,  and  the  order  of  restoration  must  be  responsive  to  it.  Its  form 
will  naturally  vary  to  conform  with  the  extent  of  the  loss. 

If  any  original  pleading  or  other  paper  is  in  existence,  which  was 
properly  a  part  of  the  original  record,  it  may  be  referred  to  in  the  ap- 
plication and  attached  as  an  exhibit. 

In  case  of  the  destruction  of  a  paper,  a  substantial  copy  of  it  may 
be  made,  and  in  the  same  manner  be  referred  to  and  attached  as  an 
exhibit,  or  the  substance  of  it  may  be  set  forth  in  the  application,  at 
the  option  of  the  applicant. 

The  following  form  will  show  the  manner  of  making  the  application 
in  each  of  the  foregoiug  cases  : 

6.    APPLICATION. 

Court  of  Common  Pleas,  Hamilton  County,  Ohio. 

A.  B.  ] 

12,471.]       vs.  >  Application  to  restore  lost  record. 

C.D.,E.F.  andMrs.K.G.J 

And  now  comes  the  said  A.  B.,  and  represents  to  the  court 
that  on  the  2d  of  September,  1854,  he  commenced  an  ac- 
tion in  this  court,  which  was  numbered  12,471,  for  [state  object 
of  suitl,  against  C.  D.,  E.  F.  and  E.  G.,  and  such  proceedings 
were  had  therein  that  at  the  January  term  of  this  court  in  the 
year  1857  a  final  judgment  was  rendered,  and  thereupon  a 
full  and  complete  record  of  the  case  was  made  as  required  by 
law.  That  said  record  was  lost  or  wholly  destroyed  by  fire 
at  the  burning  of  the  court-house  in  this  county,  in  March,. 
1884,  *  and  can  not  be  supplied  or  replaced  as  provided  in 
section  5339rt  of  the  act  passed  April  12,  1884,  81  Ohio  L. 
159. 

This  applicant  further  states  that  in  and  by  the  record  so 
made  up  and  entered  it  was  set  forth  and  appeared  as  fol- 
lows, to  wit  : 

That  the  petition  of  the  said  plaintiff  was  filed  on  the 
2d  day  of  September,  1854,  a  true  copy  of  which  [or,  in  case 
of  a  substantial  copij  beinr/  made  up,  say,  a  copy  in  substance  of 
which]  is  hereto  attached,  marked  '^Exhibit  A,"  and  made 
a  part  hereof. 

\_ln  case  of  the  loss  of  the  petition,  instead  of  a  copy  in  sub- 
stance being  attached,  as  above,  the  last  clause  may  be  as  follows :'] 

That   in    the    petition    of    the  said  plaintiff",  filed   on  the 


-4339rt.j         RESTORATION  OF  LOST  RECORDS  504^ 

2d  day  of  September,  1854,  it  was  alleged  substantially  as 
follows,  viz.: 

[Here  state  substance  of  petitmi.'] 

Applicant  further  states  that  by  the  said  record  it  ap- 
peared that  a  summons  against  all  of  said  defendants  was 
duly  issued  on  said  petition,  anrl  that  all  of  the  said  de- 
fendants were  duly  served  with  process,  and  as  to  so  much 
of  the  petition  as  claimed  a  discovery  of  advancements  a 
demurrer  was  filed  by  the  said  C.  D.,  which  demurrer  was 
by  the  court  overruled,  and  leave  was  given  said  defendants 
to  answer. 

That  an  answer  was  tiled  by  said  defendants  on  the  1st 
day  of  July,  1853,  *  in  which,  etc.  \_here  give  substance  of  the 
answer,  or  introduce  it  in  one  of  the  ways  shown  above.  But  if 
in  any  case  it  happens  that  the  applicant  is  unacquainted  with  even 
the  substance  of  the  pleadinrj  or  other  paper,  make  the  statement 
as  follows,  bcginniny  at  *  :  But  tlie  applicant  is  unable  to 
state  the  purport  or  contents  thereof,  and  prays  it  may  be 
supplied  if  ascertained.] 

That  an  amended  petition  was  subsequently  filed  by  leave 
of  the  court  setting  forth,  etc.  [state  contents  as  above.'] 

That  an  order  of  this  court  was  made  in  the  case  at  the 
April  term,  1855,  and  entered  on  the  journal,  *  finding  and 
ordering  that,  etc.  [state  substance  of  order;  or,  if  the  original 
is  preserved,  say,  beginning  at  *  :  which  order  as  originally 
drawn  by  the  attorneys  and  entered  by  the  court  is  hereto 
attached,  marked  "  Exhibit  B,"'  and  made  a  part  hereof.] 

If  the  entry  be  a  judgraeut  or  decree,  application  may  be  as  follows: 

That  afterward,  on  the  2d  day  of  April,  1858,  the  said  ac- 
tion came  on  for  hearing,  and  an  order  [or,  judgment ;  or, 
decree]  was  then  made  and  entered  upon  the  journal  of  tjie 
court,  *  which  order  [or,  judgment  ;  or,  decree]  as  originally 
drawn  by  the  attorneys  and  entered  by  the  court  is  hereto 
attached,  marked  "  Exhibit  A,"  and  made  a  part  hereof  [or, 
beginning  at  *,  finding  upon  the  pleadings  and  evidence  that, 
etc.,  and  ordering  and  adjudging  that,  etc.] 

If  the  case  is  tried  before  a  jury,  it  may  be  stated  as  foUows : 


504/i  JOURNAL    ENTRIES.  [SeC.  4339a- 

That  on  the  day  of ,  18 — ,  a  jury  wus  dnly  im- 
paneled and  sworn  in  said  action,  and  the  cause  progressod, 

and  that  on  the day  of ,  18 — ,  the  jury  returned  a 

verdict  finding,  etc.  [stale  verdict  or  its  purport']. 

Tliat  on  the  day  of  ,  18 — ,  the  said    filed  a 

motion  for  a  new  trial,  whicii  was  on  the  day  of , 

18 — ,  overruled  by  the  court,  and  judgment  entered  on  said 
verdict,  which  judgment,  etc.  [state  as  in  one  of  the  forms  gireii 
above']. 

If  it  be  a  case  in  the  District  Court,  the  f)ll<)wing  may  ho  i;s:'*l 

That  on  the  day  of  ,  18 — ,  the   transcript   and 

original  papers  of  said  action  were  delivered  to  the  clerk  of 

the  District  Court,  and  by  him  docketed  as  case  Xo. in 

said  court,  and  a  petition  in  error  was  filed  by  the  said 1 

which,  etc.  [as  in  case  above]. 

And  so  continue  with  each  step  of  the  original  case. 

In  case  of  there  being  persons  interested  in  the  judgment  who  were 
not  parties  to  the  action,  make  a  statement  of  the  facts  a  part  of  the 
application,  as  follows:' 

The  applicant  further  says  that  Mrs.  K.  G.,  the  widow  of 
E.  G.,  deceased  who  was  a  party  to  the  original  judgment, 
has  some  interest  in  the  estate  therein  set  off  and  divided 
to  him,  the  nature  of  which  is  unknown  to  applicant.  He 
furthermore  states  that  he  has  been  informed,  and  believes, 
that  sundry  portions  of  the  land  which  were  set  oft"  to  some 
of  the  parties  in  the  said  partition  have  been  sold  and  con- 
veyed, or  have   otherwise   passed   to   divers   persons   whose 

'  Notice  to  interested  parties. 

As  section  533%  provides  tlnit  "summons  shall  issue  uiid  actual  servicH  in- 
service  by  publication  shall  be  made  upon  all  persons  interested  in  or  att'ected 
by  said  original  judgment  or  tinal  entry  in  the  manner  provided  by  law  for  the 
commencement  of  civil  actions,"  etc.,  the  same  forms  will  tie  used  as  in  civil 
actions,  when  the  names  of  such  parties  are  known.  But  there  may  be  mai\ 
others  interested  whose  n«??ies  are  unknown,  and  therefore  do  not  properly  come 
under  the  provisions  of  section  5048  Revised  Statutes,  and  who  are  not  heirs  ur 
devisees,  and  therefore  do  not  come  under  section  5053  Revised  Statutes. 

In  such  cases  it  is  doubtful  if  publication  against  such  unknown  parties 
■would  be  PufBcient  to  bind  them. 


-4339a.]         RESTORATION  OF  LOST  RECORDS.  504l 

names  and  places  of  residence  are  wholly  unknown  to  said 
applicant,  and  whom  he  can  not  otherwise  describe. 

He  therefore  prays  that  the  said  Mrs.  K.  G.  may  be  made  a 
party,  and  that  all  persons  who  by  purchase  or  otherwise 
have  acquired  an  interest  in  any  of  the  lands  which  were 
included  in  the  proceedings  in  said  suit  may,  when  discov- 
ered, be  admitted  as  parties  to  this  proceeding. 

The  applicant  therefore  prays  the  court  that  the  said  rec- 
ord may  be  supplied  and  replaced  in  the  manner  provided  by 
the  said  statute  passed  April  12,  1884,  and  for  such  other 
and  further  relief  as  from  the  nature  of  the  case  may  be  re- 
quired. K.  T.  k  .\L, 

Attorneys  for  Applicant. 

State  of  Ohio,  Hamilton  County,  ss.: 

A.  B.,  the  applicant  aforesaid,  being  duly  sworn,  says  that 
the  facts  stated  in  the  foregoing  application  are  true,  as  he 
verily  believes.  A.  B. 

Sworn  to  before  me,  and  subscribed   in   my  presence,  this 

day  of ,  18—.  C.  W., 

Xotary  Public,  Hamilton  County,  Ohio. 

7.    PRECIPE    FOR    SUMMONS. 

Court  of  Common  Pleas,  Hamilton  County,  Ohio. 
A.  B.  ) 

12,471.]      vs.  } 

C.  D.  et  al.    j 

To  the  clerk  : 

Issue  summons  in  above  proceeding  for  C.  D.,  E.  F.  and 
K.  G. 

Indorse  summons  as  follows  :  Application  by  A.  B.  for  res- 
toration of  the  record  destroyed  by  fire.  K.  T.  &  M., 

Attorneys  for  Applicant. 

lu  case  of  uou-resideat  parties,  the  sama  affidavit  aud  order  will  be 
made  as  in  civil  actions  for  service  by  publication. 


504/  JOURNAL  ENTRIES.        [Sec.  4339a- 

8.    AFFIDAVIT    OF    NON-RESIDENCE,    ETC. 

State  of  Ohio, 


Hamilton  County,  '' 

A.  B.,  the  applicant  in  the  above  named  proceedings,  be- 
ing first  duly  sworn,  says  that  E.  F.,  one  of  the  parties  to 
the  foregoing  action,  is  a  non-resident  of  the  State  of  Ohio, 
and  that  service  of  a  summons  in  said  proceeding  can  not 
be  made  upon  him  in  the  State  of  Ohio. 

Applicant  further  says  that  the  proceeding  aforesaid  is  one 
in  which  service  by  publication  is  authorized  by  section 
5048  Revised  Statutes,  and  section  53396  of  the  act  passed 
April  12,  1884.  A.  B. 

Sworn  to,  etc. 

After  publication  made  aud  proof  filed  in  any  of  the  above  cases, 
an  entry  approving  the  same  should  be  made' as  in  other  cases. 

9.  Entry  approving  publication. 
[Title.] 

ISTow  comes  A.  B.,  the  applicant  for  restoration  of  the 
record  herein,  and  oifers  proof  of  publication  of  the  pen- 
dency and  prayer  of  said  application  ;  and  the  court  finding 
said  publication  and  proof  in  all  respects  regular  and  ac- 
cording to  law  and  the  former  order  of  this  court,  do  hereby 
approve  the  same. 

Ou  the  application  being  heard  and  granted,  the  entry  may  be  in 
the  following  form  : 

10.  (Sec.  53396.)     Order  for  supplying  lost   record  from   evi- 

dence. 

[Title.] 

The  application  for  the  restoration  of  the  record  in  this 
case  now  coming  on  to  be  heard,  the  court  find  that  due 
legal  notice  thereof  has  been  given  to  all  parties  to  this 
proceeding,  that  the  original  record  of  this  action  has 
been  lost  or  destroyed  as  stated  in  said  application,  and 
that   it   can    not   be    supplied    or   replaced    as    provided    in 

section  5339a,  81  Ohio  L.  160.    And  the now  producing 

evidence  sufficient  to  enable  the  court  to  find  the  substance 


-53396.]        RESTORATION  OF  LOST  RECORDS.  b04k 

of  such  record  material  to  the  preservation  of  the  rights  of 
the  parties  thereto,  it  is  ordered  that  a  new  record  be  made 
in  tliis  case,  reciting  the  substance  and  effect  of  the  original.  * 
And  the  court  iind  tliat  the  exhibits  attached  to  the  applica- 
tion are  respectively  the  original,  or  copies  in  substance  of 
tbe  original,  pleadings,  proceedings,  orders,  and  judgments 
of  the  court  as  therein  alleged,  and  that  the  statements 
made  in  said  application  are  substantially  correct. 

It  is  therefore  ordered  that  said  exhibits  be  allowed,  and 
the  statement  of  facts  in  said  application  be  admitted  as  part 
of  the  record  of  this  case,  and  that  a  full  record  thereof  be 
marfle  by  the  clerk  of  this  court,  and  that  the  costs  be  paid 
out  of  the  county  treasury. 

Unless  the  papers  from  which  the  new  record  is  to  be  made  are 
quite  full  and  complete,  the  sid)stance  of  it  should  be  made  up  and 
shown  to  the  court  by  the  attorney,  together  with  the  papers  from 
which  it  is  made.     In  that  case  the  entry  may  be  as  follows : 

II.  (Sec.  53396.)     Order  suppbjinr/  lost  record — and  the  same 

made  up  and  presented  to  the  court. 

[Title.] 

As  in  the  last  to  *  and  conclude] — And  the now  present- 
ing to  the  court  a  record  made  from  the  several  pleadings, 
abstracts,  and  papers  offered  in  evidence  in  the  case,  the 
court  find  tlie  same  to  be  substantially  correct,  and  order 
that  it  be  substituted  and  recorded  as  and  for  the  original 
record.  It  is  further  ordered  that  the  costs  of  this  proceed- 
ing be  paid  out  of  the  county  treasury. 

III.  Re-copying  original  papers  and  records,  etc. 

By  an  act  passed  May  4,  1885,  82  Ohio  L.  240,  a  defect  in  the 
original  act  for  the  restoration  of  lost  records  was  remedied.  It  pro- 
vides fur  re-copying  original  papers  and  restoring  and  indexing  the 
appearance  dockets,  and  for  re-copying  parts  of  the  record  saved 
from  destruction.     The  order  in  the  first  case  may  be  as  follows  : 

(Sec.  5339e,  82  Ohio  L.  240.)      Order  for  re-copying,  etc.,  origi- 
nal papers. 
{Title.] 

It  appearing  to  the  court  that  the  journals  and  the  appear- 


504^  JOURNAL    FNTRIES.  [sEC.  9076- 

ance  docket  wherein  the  proceedings  in  this  case  were  entered 
and  docketed  were  destroyed  at  the  burning  of  the  court-house, 
but  that  the  original  papers  in  the  case  were  saved,  it  is  now 
on  motion  of' the  — ordered  that  the  original  entries  be  re- 
entered upon  the  journal  of  this  court;  and  that  the  appear- 
ance docket  entries  of  the  case  be  restored,  and  that  the  cost 
thereof  be  paid  out  of  the  county  treasury. 

IV.  Establishing  the  fact  of  the  existence  and  the  sub- 
stance AND  EFFECT  OF  A  JUDGMENT,  PRIOR  TO  THE  DE- 
STRUCTION OF  THE  RECORD. 

It  will  often  happen  that  the  restoration  of  the  final  judgment  or 
decree  in  an  action  will  answer  all  the  purposes  required,  as  where 
the  object  is  simply  to  preserve  the  lien  on  real  estate.  In  that  case 
the  restoration  should  be  under  section  9076.  The  proceedings  should 
be  uuder  the  number  of  the  original  case.  The  application  may  be 
in  the  following  form : 

12.    APPLICATION. 

Court  of  Common  Pleas,  Hamilton  County,  Ohio. 
A.  B.  ■]  Application  to  have  established  the  fact 

12,471]  vs.  >      of  the  existence  of  a  judgment  prior 

C.  D.  and  E.  F.     j      to  the  destruction  of  the  record. 

As  in  application  on  page  8  to  *,  and  continue  :'\ 

The  applicant  further  states  that  the  entry  of  the  judgment 
rendered  in  such  action,  upon  the  journal  of  the  court,  was 
also  destroyed  by  the  burning  of  the  court-house  as  aforesaid, 
and  that  neither  the  original  entry  nor  any  certified  copy 
thereof  can  be  found. 

The  applicant  further  says  that  the  judgment  aforesaid 
was  in  the  words  and  figures  [or,  was  substantially]  as  fol- 
lows, viz  . 

[Here  give  copy  or  substance  of  jadqment.'\ 

The  applicant  therefore  prays  that  a  decree  may  be  entered 
by  the  court  establishing  the  fact  of  the  existence,  prior  to 
the  destruction  as  aforesaid,  of  such  judgment  and  the  sub- 
stance and  effect  thereof;  and  for  such  other  and  further  re- 
lief as  from  the  nature  of  the  case  may  be  required. 

W.  k  W.,  Attorneys  for  Applicant. 

[  Verified  as  former  application^ 

The  service  upon  the  aliove  application  will  be,  in  form,  as  in  the  last. 


-OOT/^.]  KESTOUATION    OF    LOST    KECOKDS.  'jQApi 

13.  (Sec.  907/^  81  Ohio  L.  163.)  Decree  finding  existence  of 
a  judgment,  and  the  substance  thereof. 

[Title.'] 

The  application  filed  in  this  case  by  J.  D."  for  having  es- 
tablislied  the  fact  of  the  existence  of  a  judgment,  in  this  ac- 
tion, and  its  substance  and  effect  now  coming  on  to  be  heard, 
the  court  tind  that  due  legal  notice  thereof  has  been  given 
to  all  parties  to  this  proceeding:  that,  as  claimed  in  said  ap- 
plication,, a  judgment  was  rendered  iu  the  above  named  ac- 
tion on  the day  of  ,  18 — ,  in  favor  of  the  said  J.  D. 

and  against  the  said  C.  D.  and  E.  F.,  and  duly  recorded,  and 
that  the  record  and  entry  thereof  were  lost  or  destroyed  in 
the  l)urning  of  the  court-hotise  of  this  county,  and  that  no 
certitied  copy  thereof  can  be  found.  And  the  court  thereupon 
tind  said  judgment  to  have  been  in  words  and  figures  [or,  to 
have  been  in  substance  and  effect]  as  follows,  to  wit  : 

[Title.'] 

[Copy  in  full  or  set  forth  the  substance  of  the  judgment.] 

And  it  is  ordered  that  the  costs  of  this  proceeding,  and  of 
the  record  of  this  decree,  be  paid  out  of  the  county  treasury. 

V.     Establishing  the  fact  of  the  existence  of  a  lost  mort- 
gage OH  other  lien,  deed,  or  will,  and  its  substance 

AND  EFFECT. 

The  proceeding,  under  section  0076,  81  Ohio  L.  Itio,  1H4,  i.<  from  its 
nature  necessarily  a  .separate  action.  But  it  is  to  be  instituted  and 
continued  in  accordance  with  the  provisions  of  section  53396. 

The  application  must  therefore  have  all  tlie  formalities  of  a  petition 
iu  civil  actions,  and  it  must  be  numbered  as  a  new  action  upon  the 
the  docket. 

Under  section  907c  a  new  action  is  provided  for. 

14.  petition. 

Court  of  Common  Pleas,  Hamilton  Countv,  Ohio. 

[Tif/c] 

Xow  comes  the  said  A.  B.,  and  represents  to  the  court  that 

on   the  day  of  ,  18 — ,  he   became   the   holder  and 

owner  of  a  mortgage  lien  on  the  following  described  real 
estate,  to  wit  [describe]  : 

That  said  mortgage  was  duly  executed  by  said  C.  D.  and  de- 
livered, etc.  [state  full  facts  of  execution,  record,  and  ouinership\. 


504/1  JOURNAL    EXTRTES.  [SEC.  9076,  C. 

The  petitioner  further  says  that  the  record  of  said  mortgage 
deed  was  lost  or  destroyed  by  fire  at  the  burning  of  the  court- 
house in  this  county  in  March,  a.  d.  1884,  and  that  neither 
the  original  mortgage  nor  a  certified  copy  thereof  can  be 
found. 

Wherefore,  the  petitioner  prays  that  a  decree  may  be  en- 
tered by  this  court  establishing  the  fact  of  the  existence, 
prior  to  such  destruction,  of  the  mortgage  aforesaid,  and  also 
its  substance  and  eftect,  and  for  such  other  and  further  relief 
as  from  the  nature  of  the  case  may  be  required. 

R.  T.,  Attorney  for  Petitioner. 

[  Verified  as  in  other  cases.'] 

The  petition  under  section  907c,  to  establish  the  existence,  etc.,  of  a 
lost  deed  or  will,  may  be  in  general  as  the  above. 

The  decree  in  all  of  the  above  cases  may  be  in  the  same  general 
form,  as  follows  : 

15.  (Sees.  9076  and  907c,  81  Ohio  L.  164.)  Decree  finding 
existence,  contents,  etc.,  of  am/  lost  lien,  deed,  or  will. 

[Title.] 

The  petition  in  this  case  now  coming  on  for  hearing,  the 
court  find  that  due  legal  notice  thereof  has  been  given  to  all 
parties  to  this  action,  and  that  they  are  all  properly  be- 
fore the  court.     The   court  further  find   as  set  forth  in   the 

petition  that  on  the day  of ,  18 — ,  the  said  C.  D. 

made,  executed,  and  delivered  to  the  said  A.  B.  the  mort- 
gage deed  therein  set  forth  [or  describe  any  otker  lien,  deed,  or 
will] ;  that  the  same  was  duly  filed  and  recorded  in  the  ofiice 

of  the of  this  county  {or,  duly  admitted  to  probate),  on 

the day  of ,  18 — ,  and  that  the   record  thereof  was 

{or,  that  said  will  and  the  probate  thereof  were)  destroyed  by 
fire  in  the  burning  of  the  court-house  of  this  county. 

And  it  appearing  that  neither  the  original  nor  a  certified 
copy  of  said  instrument  can  be  found,  the  court  find  tVom 
the  evidence  now  adduced  that  the  said was  in  sub- 
stance as  follows,  to  wit:  [Here  <jire  substance  of  mechanics' 
lien,  mortgage,  or  other  lien,  deed,  or  will.] 

It  is  therefore  ordered  that  this  decree  be  recorded  in  the 

ofiice  of  the of  this  county,  and  that  the  costs  of  this 

proceed! no;  be  paid  out  of  the  county  treasury. 


INDEX. 


[The   numbers   07i  the  right  hand  refer  to  the  pagen,  the  others,  to  the  Journal 

Entries.'] 


PAGE 

Abatement 
judgmentof,  85 44 

Abseiice 

of  witness  to  will,  signature,  how 

proven,  53'Jrt 293 

commission  t<>  take  testimoiiv, 

540 .'..  -293 

Abstracts 

of    documents,    niav    be     taken 

when,  184..' 88 

Account 

case  sent  to  referee  or  master,  to 

take,  235 126 

after  default  found,  23U 127 

judgment  after  reportstating.  237,  126 

judgment  on  report,  238 127 

of  receiver — 

referred  to  referee,  etc.,  401 212 

allowed.  402 212 

of  administrator — 

current,    tiled    and    suspended, 

649 337 

final,  filed  and  suspended,  649..  337 

entries  compelling 337 

removal    of   administrator    for 

failing  to  render,  582 311 

allowed  and  confirmed,  651 337 

suspended,   allowed     and    con- 
firmed, 652 338 

several  at  same  time,  653 338 

confirmed  on  exception   heard, 

654  339 

disallowed,  655 339 

referred  to  special  commission- 
er, 657 339 

order  opening  settled,  658 340 

allowed,  as  final  discharge,  661,  340 

order  for 344 

in  insolvency   cases 349 

of  guardians 353 

order  for  special,  697 353 

orders  enforcing,  how  made 355 

of  assignee 378 


PAGE 

Account 

day  fixed  for  hearing,  756 378 

notice  of  filing  ordered,  775 383 

publication  of  notice  approved, 

776 383 

disposition  of,  when  attached,*! 78,  184 
order  that  receiver  collect,  etc., 

339 184 

Action 

continued  at  close  of  term 4 

name  of,  set  out  after  title,  when  10 

must  be  in  name  of  real  party....  15 
continued  against  representatives 

of  party,   15 19 

dismissed  for  want  of   necessary 

party,  18 20 

for  recovery  of  real  property,  new 

party  made,  19....! 20 

subject  of,  claimed  by  third  party  20 

claim  to  subject  of  barred,  21 21 

causes   of,   order    to   state    sepa- 
rately,   36 21 

against  garnishee 180 

when  judgment    rendered 181 

when  dismissed 181 

judgment  in,  333,  334 181,  182 

against  receiver 193 

order  allowing,  355 194 

receiver  ordered  to  brinij,  355 194 

for  injury  by  wrongful  death 326 

pending    proceedings     in     bank- 
ruptcy   417 

order  staying,  854 419 

after  discharge,  856 419 

order  that  case  proceed  to  judg- 
ment. 855 419 

dismissed,  when.  857 420 

removal  of.     See  Removal. 
revivor  of.     See  Revivor  of  action. 

Actions 

consolidation  of 36 

practice  concerning 36 

order  for,  66,  67 37 

(505) 


506 


INDEX. 


PAGE 

Aciioiis 

several  to  abide  the  result  of  one, 

68 37 

Acts 

punishable  as  contempts 206 

See  Contempts  of  court. 

Adjourned  term 5 

See  Term,s  of  court. 

Adjournment 

of  daily  sessions 4,8 

of  term 4,8 

Administration  of  estates.    See  also 
Executors  and  admmistra- 
tors. 
granted  to  widow  or  next  of  kin, 

567 307 

granted  to  other  person,  568 307 

within  the  state,  of  person  djMng 

intestate  out  of  the  state, 

569 308 

granted  to  one,  when  other  named 

in  will  declines,  570 308 

granted  with  will  annexed,  etc., 

571 < 308 

during   minority   of    executor, 

572 309 

granted   to   one   executor,  when 

other  one  is  under  age, 

573 309 

entry  when  other  comes  of  age, 

574 309 

within  the  state,  of  non-resident 

doing    business    in    the 

state,  579  311 

granted  after  twenty  years,  580...  311 
after  death  of  executor,  etc.,  583..  312 
revoked  on  will  being  proved,  584,  312 
of    marriase    of    executrix,    etc., 

585 312 

Admitiistrators.  See  Executors  and 
administrators ;  also  Ad- 
ministratioji  of  estates. 

special  appointed,  575 309 

citation  against,  576 310 

attachment  allowed,  577 310 

Admini  st  rat  ri.v 

letters  granted  after  marriage  of, 

585 312 

Admission 

of  documents,  etc 87 

See  Doonnents. 
to  citizenship — 

See  NalHr<dizatio7i. 

Adoption 

of  infants 392 

next  friend  appointed,  800.  ....  392 

order  for  adoption,  801 392 


Adverse  possession 

delivery  in  case  of,  enforced  by 

writ,  note 117 

order,  225 117 

Advertisement 

German,  dispensed  with. ..109, 154,  243 
in  Bohemian  paper  ordered,  287..  154 

Affidavit 

how  brought  into  bill  of  excep- 
tion    495 

Affirmiince 

of    judgment    in    district   court, 

''820,  822 402 

in  criminal  cases,  979,981..  485,486 

Affirmation 

form  of 445,489 

Agreed  statement 

bill  of  exceptions  on... 601 

Alien 436 

See  Naturalizatioji. 

Alimony 

See  Divorce  and  alimony. 

decreed  in  divorce  case 215,  216 

real  estate  decreed  in  fee 216 

in  money  ordered,  407,  411...  217,  219 
when  a  lien  on  real  estate,  note....  217 

order  for,  pendente  lite,  410 218 

decree  for  on  petition,  411 219 

Alloioance 

set  off  to  widow,  588 313 

to  widow  increased,  589 313 

diminished 314 

of  rejected    claim,  judgment   for, 

754 377 

Amendment 

of   petition    after   demurrer   su.s- 

tained 28 

of    answer    after    demurrer    sus- 
tained   29 

to  pleadings,  how  made,  7iote.2%,  31,  34 

of  defective  certificate 34 

of  summons 35 

of  pleadings  in  district  court  77 

allowed  in  case  of  variance 90 

of  execution,  when 153 

leave  granted  for,  284 163 

of  record  may  not  be  ordered 402 

Amerconent 

what  pleadings  required 197 

facts  stated  in  motion  for 198 

amount,  how  ascertained 198 

of  sheriff. 197-199 


INDEX. 


507 


Atnercement 
for  failing  to  execute  writ  of  exe- 
cution, 303 108 

for  faiiiiii^    to   pay    over  rnonev. 

30-1 ."..    108 

for   failini^   to   execute    order   or 

process,  305 lO'J 

of  cleric,  300 109 

surety   of  officer  made    party    to 

judgment  of,  307 199 

/Iw.s'cv'r 

See  Counterclaim ;  Plendivfifi. 

extending  time  for 28 

leave    for,    sifter    demurrcn'    over-" 

ruifd,  40 29 

counterclaim   in,  made  subje(!t  of 

a  se]iarate  action,  40 30 

time  for  extended,  51 ..     32 

tiled  by  leave,  52 32 

received  by  court,  53 32 

default  for,  is  confession 123 

of  garnishee  compelled 179 

of  garnishee  not  satisfactory 182 

person  refusing  to  give,  commit- 
ted to  jail,  595 315 

to  interrogatories,     fcjee  Intcrrug- 
aiurleti. 
An)u(itii.     .See  Dower. 
Appeal 

from  t/i/'  common  pleas  to  the  cir- 
cuit court 76 

entries  in  the  common  })leas 70 

from  order  dissolving  itjjunction.     76 

notice  of  appeal,  152 76 

by  adm'r  or  ex'r,  153 70 

by  one  of  eeveial  parties,  155..     70 

order  fixing  ap}>c  al  bond,  154 70rt 

entries  in  the  circuit  court 70rt 

order  for  new  undertaking 77 

dismissed  for  want  of 77 

suspending  judgm't  for  injunct"n     77 
suspending    execution    in    order 

dissolving  injunction 76« 

judgment    for    plaintitf   failing 

to  recover  more,  etc.,  158...     77 

penalty  allowed 78 

no  penalty  allowed 79 

entry    remanding    to    cnuimon 

pleas,  162 79 

in  decree  for  sale,  103 79 

from  order  dissolving   restrain- 

ingorder 188 

injunction 189 

from    probate    court     to    codiuioh 

picas  82 

entries  in  common  pleas 82 

from    order    refusing  to  admit 

will  to  probate,  547,  548...  296 

judgment  on,  889,  S90 442,  443 

from  proceedings  in  allowance 

of  executor's  claim 322 


A])pcal 

in  proceedings  bj'  executors  to 

sell  real  estate 327 

notice,  how  given 383 

notice  of,  777 384 

bond  for,  filed    and    approved, 

778 384 

judgment  in  common  pleas,  779.  384 

from  referee 60 

from  a  justice  to  the  common  pleas.     79 

time  for  pleadinu;  in  case  of :     79 

in  case  of  appellant's  failure  to 

tile  transcript 79 

case  docketed  on  behalf  of  ap- 
pellee,   and    judgment    in 

common  pleas.  104 79 

case    docketed    fur    appellee, 
and  appeal  dismissed,  105..     80 
in  case  of  plaintiff's  failure  to 

file  {tetition 80 

case  dismissed,  when ...     81 

entry  of  dismissal,  100 81 

judgment       for      defendant, 

when  81 

judgment  eiiti-y,  107 81 

quashed  for  want  of  jurisdic- 
tion      81 

entry 81 

dismissed   for   want  of  juris- 
diction      81 

entry  81 

order  for  new  undertaking  in.     82 
from  counti/  commissioners  to  com- 

mon  pleas 82 

on  what  claims  allowed 82 

form  of  judgment  in 82,  83 

from   action    of  commissioners  in 

insuJ rcncy 346 

order  allowing,  679 346 

Appearance 

entered  for  ]iurpose  of  resisting, 

etc,  only 17 

Appeara ncc  docket 

posting  entries  on,  note 13 

Appellant 

failing  to  file  transcript,  etc 79 

Appellee 

case  docketed  for,  and  judgment.     79 
and  appeal  dismissed 80 

Appraisement 

of  lands  and    tenements  on  exe- 
cution    153 

may  be  set  aside  by  court 153 

order  for  new,  294,  295 157 

of  real  estate  of  woman  found  in- 
sane, 420 228 


608 


INDEX. 


Appraisement 

by  executor  or  administrator  of 
real    estate    ordered,    566, 

567 807 

of  estate  dispensed  with,  586 312 

of  property  discovered    alter   in- 
ventory filed,  597 316 

of    personal    property    dispensed 

with,  600 317 

subsequently  ordered,  601 317 

in  inventory,  sale  made  on,  681...  328 

approved  before  sale 329 

mav  be  ordered  at    time   sale  is, 

when 329 

order  for,  632 329 

in  case  widow  has  waived  dower, 

etc.,  633 330 

confirmed,  etc.,  034 330 

subject  to  dower,  ordered,  635 331 

confirmed,  636,  637 331,  332 

order  for  ilew,  640 333 

of  equitable  interest  ordered,  647.  336 
of  real  estate,  in  sale  by  guard- 
ian.    See  Sale. 
order    for,    when     widow    has 
waived    dower    by    metes 

and  bounds,  700 357 

order  for,  subject  to  dower  in- 
terest, 707 357 

order    for,    and    assignment  of 

dower,  708 358 

of  partnership  assets — 

ordered,  when,  806,  807 

returned  and  filed,  808 


395 
395 


Appraisers 

under    letters    testamentary    ap- 
pointed, 566..  ". 307 

or  of  administration,  567 307 

of  estate  appointed,  587 313 

appointed  to   set  off  widow's  al- 
lowance, 588 313 

for  property  discovered  after  in- 
ventory filed,  597 310 

in  sale  by  executor,  substituted, 

638 332 

of  assets   of   assignor   appointed, 

745 : ^... 374 

to  set  off  homestead,  746 374 

Approprlniioti  of  propcriji 

time  for  hearing  fixed,  781 385 

order  directing  service  bv  publi- 
cation, 782 !..... 386 

preliminary  questions  determined 

and  jury  ordered,  783 386 

writ  for  view  of  premises,  784 886 

jury  impaneled   and  verdict  ren- 
dered. 786 387 

new  trial  gi'anted,  787 387 

judgment  on  verdict,  788 388 


Appropriation  of  property 

order  that  corporation  make  pay- 
ment or  deposit,  789 388 

judgment  on  failure  to  make,  790.  388 

costs,  y/o/e 388 

judgment  affirmed  on  error,  791..  389 

reversed  on   error,  792 389 

attorney  appointed   for  non-resi- 
dent, 793  389 

of  abandoned  road-bed 000 

judgment  against  Ibrmer  own- 

"er,  794 389' 

in    favor   of    former    owner, 

etc.,  795 390 

ownership  determined  bv  iury.  390 

verdict \..'....\..  390- 

judgment,    on    verdict,    790, 

797 390,  391 

occupation  of  land  before  appro- 
priation— 

verdict  391 

judgment,  798 391 

Arbiircifimi 

in  pending  case,  when 200 

order  k>\\  371 201 

judgment  on,  372 202 

agreement  ot,  not  enforced 200- 

iudgment    on    awai'd    ot    iikhicv. 

369 "..   200 

judgment  on  other  award,  370 201 

Arraigmneni 467 

A  r  rail 

order  for  talesmen,  when  set  aside.     52 
set  aside 52 

Arreiit 

on  execution  against  the  person..  158 

ortler  for.  299 158 

jM'ivilcge  from 159 

,,nlfr  of  discharge,  301 159 

of   judgment    debtor    in    supple- 

•     mentery  proceedings 168 

order  for  reduced  to  writing....   168 

order  for  arrest,  308 168 

warrant,  169 179 

order  of,  vacated,  322 176 

of  special   administrator  ordered, 

577 310 

assignment  to  avoid.     See  Assi<i- 

uiad 380 

insolvent    debtor    released   fmm, 

768 fl 

cause  continued,  etc.,  769 382 

certificate  granted  on  final  hear- 
ing, 770 382 


Arrvsi  of  'jmUiiDeni,  976,  977. 


485. 


INDEX. 


509 


PAGE 

Arrest  of  icstimony  from  jiiry 61 

iiuthorized  when 61 

evidence    withdrawn,  and   judg- 
ment for  defendant 62 

exceptions  taken 000 

Assesfimetit  for  street  improvement 
personal  judt^ment  and  order  for 
saio,  when  assessment  is 
))avable  in    one   install- 
ment, 858 420 

when  assessment  is  payable  in 

installments,  859 421 

decree  enforcing  lien,  861 42li 

Assets 

proceedings  against  one  conceal- 

i'lg  ■_ 315 

of  assignor,  appraisers  appointed 

for,   745 374 

of  partnership  appraised,  806,  807.  395 
taken     1)V    surviving    partner, 

sno  .' 395 

Assignee  of  insolvent  debtor 

bond  of,  filed  and  aj)provcd,  728..  367 
ordered  to  give  additional  under- 
taking, 729 368 

removed,  and  tru>tc'e  appointed, 

730 368 

one  of  two   allowed    to    act,  etc., 

731 368 

resignation  of,  accepted,  etc.,  732.  368 

of  one,  etc.,  733  369 

ordered  to  give  new  bond,  739 370 

removed  for  failing,  740 371 

Bale  of  real  estate  by,  order,  7J8..  374 

confirmation  of 375 

order  for  private,  749 375 

in  common  pleas,  753 377 

sale  of  personal  properly  by 375 

order  for  private,  in  course  of 

business,  750 375 

decree  confirming  private 375 

at  public   auction    after  failure 

at  private 375 

may  sell  or  compromise  desper- 
ate claim 375 

completion  of  sale  by,  751 376 

in  favor  of,  752 376 

judgment   against,    for  allowance 

of  rejected  claim,  754 377 

account  of. 378 

day  fixed  for  hearing,  756 378 

dividend  by,  ordered,  757,  760.. 378, 379 

order  for  further,  758 378 

ordered  to  pay  claim,  759 379 

extra  euinpensation    allowed    to, 

760 379 

ordered  to  re-assign,  762 380 

deed  to,  stricken  from  files,  763...  380 


V.KGT. 

Assignee  of  insolvent  debtor 

in    bankruptcy,    substituted    for 

bankrupt  in  suit 419 

Assignm.eni.     See  Assignee  of  iiisolvent 
debtor. 

voluntary  for  benefit  of  creditors.  367 

deed  filed,  727 367 

order  for  re-assignment,  762 380 

deed  of,  stricken  from  file,  763....  380 

to  avoid  arrest 380 

commissioner  of  insolvents  ap- 
pointed, 764 380 

order  for  recognizance,  765 381 

day  set  for  creditors  to  appear, 

767 381 

certificate    granted    to   debtor, 

768,770 381,  382 

petition   of    debtor    dismissed, 

771  382 

application  dismissed   for  want 

of  petition,  772 382 

Assigntnent  cf  dower.     See  Dcnoer. 
Assignment  of  judges 9 

Assignor 

See  Assignee  of  insolvent  debtor ;  As- 
signment. 

appraisers  for  assets  of,  745 374 

ordered   to   attend   for  examina- 
tion, 747 374 

sale    of,    completed    by    assignee. 

751  ^ 376 

contract    for   sale    matle    by,    r>n- 

forced,  752 376 

Attaehed  propertg 

receiver  appointed  to  take  posses- 
sion of,  326 178 

order  for  sale  of  perishable,  327..  178 

in  hands  of  garnishee 179 

See  Garnishee. 
disposition  of  after  judgment.179, 182 

order  for  return  of,  335 182 

order  applying  money,  336 183 

order  paid  to  plaintiff,  337 183 

order  for  sale  of,  338 183 

in  case  of  real  estate 184 

must  be  delivered  tosherifl". 184 

order    for   receiver  to   collect, 

339 184 

sheriff    ordered    to    re-possess 

himself  of,  340 184 

question    of    priorities,    referred, 

341  185 

Attacltinint.     See    Attaehed    Proj)- 
eriji]    (urrnislier. 
additional     securiU',    order     for, 

342 : 185 


510 


INDEX, 


PAGE 

Attachment 

discharge  of 

for  want  of  security,  342 185 

on  counter  security,  343 186 

on  motion,  344 186 

as  to  part  of  property  186 

release  of  garnishee 187 

before  debt  is  due 

issued    by    order   of    court    or 

judge 187 

order  allowins;,  345 187 

when  action  dismissed 187 

Attachment  in  coniemiit 

See  Contempts  of  court. 
against  witness   disobeying   sub- 
poena or  rule 84 

order  for,  174 85 

bond  fixed,  174 85 

discharged,  175 85 

judgment  (tn,  176 85 

to    enforce   publication    of    will, 

534 291 

when  citation  disobeyed,  535...  291 
against     special      administrator, 

577 310 

on   failure   to   return  inventory, 

591 314 

against  person  concealing  assets...  315 

against  foreign  executor 325 

when  sale  enforced  by 424 

Attempt 

verdict  of  guilty  of 478 

Attorney 

confessing     judgment,     to     sign 

journal 131 

allowed  fee  in  partition  cases,  to 

be  taxed  as  costs,  note...   239 
order  allowing,  441 239 

appointed  to  prepare  cross-inter- 
rogatories in  proceed- 
ings to  perpetuate  testi- 
mony, 529 288 

fee  allowed  to,  530 288 

allowance  for  service  of,  659   340 

order  for  fee  in  assignment  case, 

760,761 r. 379 

appointed  for  non-resident  in  ap- 
propriation proceedings, 
793 389 

substituted  for  prosecutor  in  quo 

warranto,  443 411 

appointed    to   assist    prc^secuting 

attorney,  916 459 

assigned  to  detVnd  indigent  pris- 
oner, 930 465,  468 

appointed    to   argue   exceptions,  474 
957 7. 

Auditor  of  count]! 

directed  to  issue  warrant 83 


PAGH 

Aivard 

by  probate  judge  on  question  sub- 
mitted, 668 343 

Aivard  of  arbttraior 

not  enforced 200 

judgment  on,  for  money,  369 200 

for  performance  of  other  act, 

370 201 

in  pending  case,  372 202 

Award  of  executioti 

need    not    be   annexed    to    judg- 
ment entr}- 152 

Bail 

See  Recognizance. 

money  deposited  in  lieu  of 175 

order  for  safe-keeping  of,  319...   175 

order  refunding,  320 176 

proceedings  against — 

order  staying,  321 176 

when  dismissed 176 

order  of  arrest  vacated,  322 176 

amount  of  reduced,  323 177 

allowed  in  habeas  corpus,  431 232 

Bank 
directors  of  ordered  to  give   se- 
curity, 851  415 

Bankrupt 

assignee    of,    substituted    fur    in 

suit 419 

Bankruptcji 

actions    pending  proceedings    in. 
See  Action. 

Bastardj/ 

defendant    discharged    on    bond 

given,  373 202 

on  recognizance  taken,  374 203 

defendant  surrendered  and  com- 
mitted, 375 203 

recognizance  in 203 

new  ordered,  376 203 

forfeited,  377 203 

plea   of   "not  guiltv,"  order   for 

trial,  378..." 203 

defendant   not   appearing,  order 

for  trial,  379.....'^. 204 

verdict  of  guilty,  380 204 

judgment  in  — 

necessary  finding,  note 204 

can  not  be  for  gross  sum,  note..  204 

given  on  verdict,  380a 204 

money  on  bond  forfeited  applied 

"  to  payment  of 204.  205 

attached    property   applied    to 

])ayment  of 205 

reduced  on  death  of  child,  383,  205 
plea    of    guilty    and    order    for 

maintenance,  381 205 


INDEX. 


511 


PAGE 

Bastardy 

suggestion    of    mother's     doatli, 

382 205 

death  of  child  in,  383 205 

Behavior 

recognizance  for  good,  893 448 

Bill  of  evidence 

entry  of  reservation  on,  984 492 

form  of 490 

made  part  of  bill  of  exceptions...  499 
made  up  in  reserved  case,  when..  490 
when  made  part  of  record 490 

Bill  of  cxcepUo7iH 

papers  attached  to 91 

may  be  amended 91 

made  part  of  record 91 

entry  allowing,  how  made 91 

order  allowing,  etc.,  192 91 

mu.<t  show  all  theevidence 497 

forms  of — 

in  general 495 

on  agreed  statement  of  facts...  501 

in  tlio  superior  court 499 

in  ci'iminal  cases 502 

from  district  court,  form  of 501 

in  appeal  cases 501 

in  error  cases 501 

criminal  code — 

attorney  appointed  to  argue  case, 

upon  allowance  of,  957...  474 
order  allowing,  956 474 

Bill  of  indicimcnf 

reported  by  grand  jury,  921 401 

Bolioxion  paprr 

order  for  advertisement  in,  287...   154 

Bo7id.     See    Undertaking! ;    Becogni- 
zance. 

of  master  commissioner,  ^lotc 71 

of  special  nvd?,ieY ,  note 72 

orderfor 109 

in  appeal,  order  fixing 76 

order  for  new,  in  district  court...     77 
appeal    dismissed    for  want   of 

new 77 

in  proceedings  in  contempt  fixed. 

386,  387 207,  208 

suit  on  ordered,  395 210 

of  trustee  on  sale  of  entailed  es- 
tate approved,  475 262 

in  replevin  takes  place  of  prop- 
erty   205 

taken    by    owner   of    claim,   not 

"due,  etc.,  021 323 

ordered,  on  distribution  of  bonds, 

etc.,  by  executor,  023 324 

of     executor    or     administrator 

filed,  500,  507 307 


PAGE 

Bond 

dispensed  with,  566 307 

ordered  on  sale  of  real  estate... 

329,  331,  333 

surety  released  from,  671 344 

bond  of  indemnity  to,  674...   345 
administrator  removed  lor  fail- 
ing to  give  new,  672 344 

insuflacient,  new  one   ordered, 

073 344 

leave  to  bring  suit  on,  675 345 

of  guardian 

mortgage  given  in  lieu  of,  089,  351 
exceptions  to,  dismissed,  090....  352 
additional  sureties  on  required, 

691 352 

in     larger     amount     required, 

092 352 

order  for  new,  693 352 

on  surety  released,  099 354 

new,  giveii,  694  352 

subsequently  required  of  guard- 
ian relieved  bv  will,  etc., 

095 .'. 353 

required  on  sale  of  real  estate, 

709 358 

approved,  and  decree  for  sale, 

710 359 

of  assignee 

filed  and  approved,  728 367 

order  for  additional,  729 308 

order  for  new,  739 370 

for  disallowance  of  claim,  755 378 

order  fixing,  in  appeal  from  pro- 
bate  to   common   pleas, 

777  384 

filed  and  approved,  778 384 

for   stay    of  execution,    in    error 
case,  order  fixing  amount 

of  811 ■". 398 

order  approving,  812 398 

execution .     allowed      notwith- 
standing, 813 398 

of  corporation  directors  approved, 

852 415 

Bonds 

distribution    of  bv    executor    or- 
dered, 023 324 

without   bond   being  required, 

624 324 

after  debts  are  paid,  660 340 

Books.     See  Documents. 

order  to  produce 88 

upon  trial 88 

Buildi^ig  associa  Hon 

foreclosure  of  mortgages  made  to,   119 
rules  for  ascertaining  amounts 

due  on 119,  120 

decree  for  sale 121 


512 


INDEX. 


PAGE 

Building  association 

may  charge  interest  on  what 120 

fines  in  120 

Capias 

allowed  in  bastardy  proceedings..  205 
allowed    after    recognizance    for- 
feited   450 

Capital  case 

how  jar}'  formed  for  trial  of. 470 

entry'  948 471 

judgment  affirmed  on  error,  981..  486 
sentence  in,  suspended,  982 487 

Case.     See  Action. 
continuance  of,  at  end  of  term...        7 
number  and  title  of,  at  head  of 

journal  entry 10 

title  of,  ex  parte 11 

changing  title  of. 1-3 

reserved   from    probate    court  to 

cMiminon  pleas,  G09 343 

removal  of  to  U.  S.  circuit  court, 

883 437 

to    district    court    of    another 

county,  884 438 

reserved  to  supreme  court,  885.  ..  438 

title  of,  in  criminal  ])rocedure 440 

after  name  corrected 46G 

reserved  to  general  term  on  bill 

of  evidence,  984 402 

on  jnotion,  etc.,  985 492 

removed  from    superior  to    com- 
mon pleas  court,  986 492 

Cause.     See  Case;  Action. 

Cause  progressed 56 

entry  showing 57 

entry  of  in  criminal  code,  9G2..  477 

Causes  of  action 
misjomder  of.     See  Misjoinder. 

separately  stated,  etc 27 

order  for 4 27 

Cell 

solitary  confinement  in 480 

Certificate 

defective,  amending  of 34 

to  debtor,  for  discharge  from  ar- 
rest, 768 381 

granted  on  final  hearing,  770.  .    382 
refused  on  final  hearing,  771...   382 
application    dismissed,   for    de- 
fault, 772 382 

Challenge 

of  juror  in  capital  case 472 


PAGB 

Cha7nbers 

forms  in 9 

entries  in 9 

signing  of 9 

must  be  entered  on  journal 10 

orders  at,  in  habeas  corpus 231 

Chancery  cases 
order  for  stay  of  certain,  828 404 

Change  of  name 

of  person,  decree  for,  520 283 

of  incorporated  company,  decree 

for,  522 284 

of  town,  decree  for,  521 284 

Change  of  venue 

order  for 24 

in  case  of  corporations 24 

criminal  code 

order  for,  946 469 

as  to  one  of  several   defendants, 

7wtc 469 

Changing  title  of  cause 15 

Ch a rge 

required  in    proceedings  in  con- 
tempt   207 

filed,  and  rule  allowed,  385 207 

and  bond  fixed,  386 207 

filed,    and    attachment    allowed, 

390 208 

Charge  to  jury 
made  part  of  bill  of  exceptions...  498 

Chaltels 

sale  of,  on  execution  at    private 

sale,  285 153 

on     foreclosure    of     mortgage, 

862 r..:...  423 

Chattel  mortgage 
judgment   and   order  for  sale  on 

foreclosure  of,  862 423 

property  need    not    be  within 

jurisdiction  of  the  court.  423 
Child 

death  of,  in  bastardy  case,  383 205 

father  enjoined  from  interfering 

with 215 

allowed  to  visit 216 

care  of  decreed,  407,  411 215,  220 

custody      of      minor      awai'deil, 

432 233 

of  man  joining  certain  sects,  873, 

874 432,  433 

Circuit  court.     See  Courts. 
Citaf!u)l 

for  production  of  will,  533 291 

wlien   disobeyed,  order  for  at- 
tachment, 535 292 


INDEX. 


513 


PAfJK 

Citation 

against   special  administrator  al- 
lowed, 57.6 310 

against  person  concealing   assets, 

594 315 

against   executor  failing   to   pay 

money,  66-1 341 

for  new  parties,  666 342 

for  freeholders  in  contest  of  elec- 
tion, etc.,  804 393 

CUizenship 

admission  to.     See  Sataralizntion. 

Claim 
of  partv  to  subject  of  action 

how  made,26 20 

how  barred 21 

desperate,    order    to    compound, 

605 318 

order  for  sale  of,  GOG 318 

order  for  priviile  sale  of,  607...   3)9 

ordi!r  fur  liliiii^  of,  etc.,  608  319 

against  executor  referred,  610 319 

referees  approved  of,  610 319 

judi^nn'ut  in  i'avor  cf,  611 320 

judgment  against,  ()12  :')20 

of  executor  aii;ainst  estate 321 

notice  of  hearing,  614 321 

order  allowinLC,  615 321 

appeal  and  exceptions 322 

on  which  action   will  nt)t  accrue 

for  four  years 323 

order  that    money  bo    retained 

to  ]iay,  620 323 

order  that  bond  be  taken,  etc., 

621 323 

for  injury  by  wrongful  deatii 326 

verdict  on 32i) 

judgment  on,  627 326 

order  for  settlement  of,  628 327 

of    creditors    submitted    to   com- 
missioners in  insolvencv, 

676 .'..  345 

order  allowing,  or  disallowing, 

on  appeal,  678,  680... 34X  347 
disallowed,  order  of  reference..  347 
judgment   on    award   of  ref- 
erees, 683 .348 

■•idijment  on  suit  for  allowance 

of,  6b4..: 348 

nlowance      of,      by      executor 
Confirmed    or   set    aside, 

685 348 

rejected  judgment  for  allowance 

of,  754 377 

order  for  disallowance  of,  755 378 

omitted  tVom   dividend,  order  for 

payment  of,  759 379 

Claimant 

See  Occupying  claimant. 


PAGE 

Claims 
election  between  inconslsteni  and 

incongruous..  23 

Clerk  of  courts.    See  Officer. 

must  enter  all  judgments  and  or- 
ders on  journal 10 

issues  execution 152 

amercement  of,  197 200 

allowed  to   sue   out    execution 

after,  368 200 

causing  decree  to  be   recorded  in 

recorder's  office.228,  236,  239 

one  of  examining  court,  903 453 

Clo.siw)  niinuteH 

of  district  court 

regular  term 4 

daily  sessions 4 

of  common  pleas  court 4 

adjourned  term  5 

special  term 6 

separate  session 7 

daily  sessions 8 

Closing  term  of  court 
See  Terms  of  court. 

Commission 

to  take  depositions..' 87 

to    take  testimonv  of  witness  to 

will,  540" 293 

after  one  sworn,  541 294 

returned  and  will  admitted  to 

record,  544 295 

returned,  other  witness  exam- 
ined, etc.,  545 295 

to  take  election  of  widow  under 

will,  557 300 

crimi7ial  cudr — 

to  take  testimony,  951 473 

Commissioner 
administrator's  account  referred 

to  special,  657 339 

of  wrecks,  order  appointing,  531.  288 
of  insolvents,    order    appointing, 

764 380 

Conimissionrrs 
in  partition — 

when  not  required 236 

in  insolvency — 

appointed,  676 345 

lurther  time  allowed  to,  677 346 

appeal  from  county — 

order    allowing   or  disallowing 

claim  on,  678,  680.. ..346,  347 


514 


INDEX. 


PAGE 

Co7nmissioners 

order,    on    petition,   allowing, 

G79 346 

order  for  distribution  on   report 

of,  681 347 

executor    autiiorized    to    act    in 

place  of,  682 347 

Cotnfnitment 

for    contempt.       See     Contempts     of 
court. 

in    case     of     non-pavment    of     fine, 
384 .". 206 

on  execution  aeainst  the  person,  or- 
der for7299 158 

crimijial  code — 

sentence  for  until  fine  and  costs 

are  paid 479 

Cornmittee 

appointed  to    determine  insanity 

of  woman,  etc.,  419 228 

Common  2)leas  court.     See  Courts. 

Compani/.     See  Corporation. 
claiming  abandoned  road-bed.389-391 

Compensation 
of  executors  and  administrators, 
how  made  in  Hamilton 

county 340 

for  special  services,  659 340 

extra  allowed  to  assignee,  760 379 

allowed  to  attorney,  760 379 

Completion 

of  sale  by  assignee,  751 376 

of  real  contract.     See  Contract...  258 

Compoutidinq 

of  debt,  order  for,  599 316 

of     desperate    claim    authorized, 

605 318 

Coinpro7nise 

See  OJfer  to  confess  jadgyncnt. 

Concealin;/  assets 
citation    against    person    accused 

of,  594 315 

attachment 315 

order  committing  accused  to  jail, 

595 315 

judgment   against    person    found 

guilty  of,  596 315 

Co7iclKsion 
of  fact    and  law,   separate  state- 
ments of 63 

entry  on,  130. 63 

of  law,  what  regarded  as.  note....     64 

Conditional  order.     See  Revivor. 

Confession  of  jiuhpncjit 
See  Judgment. 


PAGE 

Confession  of  judgment 

judgment  after  oflPer  of. 42 

operates  as  release  of  errors 131 

Confineme7it 

See  Solitary  confinement. 

Confirmation 

of  referee's  report,  when  required.  65 

of  master's  report,  when  required.  70 

decree  for,  145,  146 72 

of  sale 117 

on  building  association  decree..  122 

of  sale  on  attachment 184 

of  sale  of  leasehold  estate,  how 

made 428 

Confirynation.  and  distribution 
decree  of,  on  sale  of  mortgaged 

property,  225 117 

in  case  of  part  of  several  notes 

being  due,  228 119 

on    building    association  mort- 
gage, 229,  230,  230« 131 

decree  of,  on  sale  of  land  on  exe- 
cution.    See  Sale. 

Consolidation  of  actions 

practice  concerning 36 

order  for,  66,  67 37 

Constructive  service.     See  Service....     25 

Contempts  of  court 

in  disobeying   rule 84,  85 

witness  refusing  to  be  swoi-n 85 

misbehavior  in  presence  nf  court.  206 

order  punishing  for,  384  206 

ads  punishable  as 206 

title  in  entries  concerning 207 

charge  in  writing  required  207 

tiled,  and  rule  allowed,  385 207 

rule  to  show  cause 207 

order  allowing'-,  385 207 

and  bond  fixed,  386 207 

case  continued,  etc.,  387 208 

discharged,  388 208 

order  punisliing  for  disobedience, 

389 208 

attachment 2U8 

order  for  in  first  instance,  390 .  208 
order  for,  after  rule  disobeved, 

391 " 209 

order  discharging,  393 210 

order  punishing  for,  392 209 

order  for  arrest  of  party  on  hail, 

394 210 

suit  on  bond  ordered,  395 210 

discharge  from  impri-sonment  or- 
dered, 396 210 

Contest 
of  election  of  justice,  804 394 


INDEX. 


515 


Continuance 
of  causes,  motion*,  etc.,  at  end  of 

term 7 

Contract 
performance  of  after  judgment..40,  41 

real,  completion  of. 258 

survivor  authorized  to  complete 

contract  for  !?ale,  475 258 

^        executor,    etc.,    authorized    to 

complete,  471 258 

judgment   to   compel    convey- 
ance to  heirs,  572 259 

by  guardian  363 

of  sale  by  assignor  enforced,  752.  376 

Cotisti'uctlon 
of  question  concerning  estate,  670.  343 

Controversy 

submitted,  judgment  on G4 

Co7iveyance.     See  Deed. 

order  for  master  to  make,  289 155 

decree   for,  of  land    as   dower  of 

insane  woman,  421 228 

same,  for  life,  422  229 

to  heirs  of  deceased  person,  572...  259 
to  delraud  creditors,  how  declared 

void 371 

when  notice  is  given 371 

decree  for,  and  trust  admin- 
istered in  common  pleas, 

741 371 

decree  for,  and  judgment  cer- 
tified  to    probate    court, 

742 372 

trustee  appointed,  743 373 

when  notice  is  not  given 373 

conveyance  declared  void  in 
common  pleas,  and  judg- 
ment certified  to  probate 

court,  744 

trustee,  how  appointed 

fraudulent,  how  prevented 

to   certain    sects    declared    void. 


of  real  estate — 

when  decree  may  operate  as... 

when  enforced  by  attachment.. 

decree  for,  86o 

obtained  by  fraud,  set  aside,  864.. 

Coiivk't 

insane  or  pregnant 

insanity  of  found,  etc.,  972 

found  not  insane,  973 

Copy 

of  documents,  etc.,  allowed,  186.. 

when  not  allowed,  187 

of  will— 

from  other  county  in  Ohio  ad- 
mitted to  record,  546 


373 
374 
374 

433 

423 
424 
424 
424 

482 
482 
483 

88 
89 


296 


PAGE 

Copy 

from   other  state   admitted   to 

rt'cord,  549 297 

recorded,  etc.,  admitted  to  rec- 
ord, 550 297 

admitted  to  record,  when  rec- 
ord destroyed,  553 299 

of  pleading,  substituted,  810 398 

Coro7ier 
when  interested,  other  person  ap- 
pointed to  execute  pro- 
cess      12 

order  that  venire  issue  to 52 

Corporation 
order   for   change   of  venue,    in 

case  of 24 

judgment  against,  how  enforced..  160 

stockholders,  reported  how 160 

dissolution  of 210 

order  that  notice  be  given,  397.  211 

order  for,  398 211 

receiver  appointed,  398 211 

dividend  to  creditors  ordered, 

399 212 

dividend    to    st(Jckholders    or- 
dered, 400 212 

receivers  account  referred,  401.  212 

allowed,  402 212 

officers  ordered  to  make  show- 
ing, 403 213 

vacancy    in    board    oi   trustees 

declared,  etc.,  404 213 

remaining   ones    empowered 

to  act,  404 213 

new  trustees  appointed,  405..  214 

decree  changing  name  of,  522 284 

appropriatiiiir,    ordered    to   make 

payment,  etc.,  789 388 

judgment  against  on  failure  to 

make,  790 388 

claiming     abandoned     road-hed. 

389 391 

occupying  land  before  appropri- 
ation    391 

ouster  against  directors  of.  846....  412 
and    order    for    new    election, 

847 413 

dissolved  for  non-user,  848 413 

report  of  trustee  approved,  849.  414 
ousted    Irom     exercising     illegal 

power.  850 414 

Costs 

pa\'meiit     of      before     amended 

lik-adiiig  tiled 35 

when  plaintitl'  on  appeal  fails  to 
recover    moi'e    than    in 

court  below 77 

in  appeals  quashed  or  dismissed 

for  want  of  jurisdiction,     81 


516 


INDEX. 


PAGE 

Costs 

included  in  judgment 97 

of  protesting  note- 97 

on  judgment  less  than  $100. 7ioie,  100 
in    case    dismissed    for    want   of 

jurisdiction 104 

wiien  judgment  for,  for  plaintiff,  ]o-l 

execution  for 141 

recoverj'  of 141 

who  liable  to  clerk  for 141 

security  for 141 

order  to  increase  deposit 141 

order  for  plaintiff  to  give 142 

order  for  additional 142 

action  dismissed  for  want  of....  142 

judgment  iigainst  surety  for 142 

re-taxation  of 143 

order  for 143 

execution  for 152 

standing  order  for 152 

when  recovered  from  executor...  821 

in  appropriation  case,  7iote 388 

of  justice    on    reversal   of  judg- 
ment, note 404 

Coimsel.     See  Attorney. 

Count 

party  required  to  elect  upon  one,  22 

entry  of  election  and  exception....  23 

Counterclahn 

new  party  made  on 22 

made  subject  of  separate  action...  30 

order  for 32 

judgment  on,  209 103 

■  dismissal  after 105 

Count}  I 

laid  off  into  wreck  districts,  532..  289 

Count II  commissioners 

appeal  from  to  common  pleas 82 

allowed  in  what  cases 82 

judgment  against 83 

Cotirts 

of  equitj'  follow  rules  of  courts  of 
law    in     making    sales, 

note 423 

Circuit  court 

continuing  term  of 4 

order  for 4 

special  term  of 2 

order  for,  put  on  journal 2 

form  of  oj>ening 2 

order  for,  made  by  judges...  2 
regular  term  of 

form  of  opening I 

of  closing 4 

daily  sessions  of 4 


PAGB 

Courts 

opening  of 4 

closing  of 4 

entries  in,  on  appeal 76a 

amending  pleadings  in 76a 

making  new  parties  in 76a 

Court  nf  coininon  jdeas 

adjourned  term  of 5 

order  for,  where  entered 5 

order  for 5 

form  of  opening 5 

closing  of 5 

special  term  of G 

order  for  character  of. 6 

should  go  in  journal 6 

form  of  opening 6 

of  closing 6 

separate  session  of 7 

form  of  opening 7 

of  closing 7 

daily  sessions  of 8 

opening 8 

closing , 8 

joint  session  of 8 

forms  in 8 

opening  term  of 8 

opening  daily  sessions 8 

minutes,  how  signed 9 

Probate  court 

appeal  from  to  common  pleas...     82 

entries  in 280 

case  reserved  from  to  common 

pleas,  609 343 

Superior  court 

entries  in 490 

error  in 490,  493 

reservation  to  general  term......  490 

entry  of,  984,  985 492 

removal  of  case  from 492 

entries  in  general  term 492 

bill  of  exceptions  in 499 

Creditor 
desperate  claim  filed  for  benefit 

of,  608 319 

allowed  to  elect  trustee,  736 870 

trustee  elected  by,  approved,  etc., 

737 370 

conveyances  to  defraud,  declared 

void 371 

See  Conveyance. 

Crime 
proceedings  to  prevent 447 

Cross-petitioner 
decree  for  sale  in  favor  of....   110,  111 

Curtesy 
divested  in  divorce 216 

Custody 
of  minor  child  awarded,  432 233 


INDEX 


517 


PAGE 

Daily  sessions 

of  district  court 4 

opening  of 4 

closing  of 4 

of  separate    session    of    connuon 

pleas 8 

opening  of 8 

closing  of ^. 8 

of  joint  session  of  tonimon  plea.-,  8 

opening  of 8 

closing  of 8 

D(nu(i(/i  s 

as.-essed  by  tlie  court  on  default..  124 

inquiry  of,  after  judgment,  etc...  lolt 

verdict  on  assessment  of 140 

judgment  on  the  assessment....  140 
in   replevin  cases  based  on  what, 

noie 270 

inquirv  of,  alter  judgment  for 

plaintiff,  505 277 

See  Iiiijuirfi  <  f  (hinurjca. 

awarded  in  mandamus  case,  8?;7..  408 

case  sent  to  jury  lor,  8:'7n 40!l 

verdict  and  judgment 409 

Dcaih 

of  party  suggested  44 

of  mother,  in  bii^tardy  case,  382..  205 

of  child,  in  bastardy  case,  3So 205 

of  witiie.-s  to  will,  signature,  how 

]>roV('ii,  5-)9a 2n:> 

of  executor,  administration  after 

5SH  :112 

action  for  injury  by  wrongful iVJti 

settlement  of  claim  for,  628 ;'27 

sentence  of 480 

of  escaped  prisoner  recaptured, 

971 482 

suspended,  982 487 

Debt 

before  due,  attachment 187 

order  allowing,  345 187 

compounding  of,  permitted,  599...  316 

Debtor 

of  defendant  subjected,  etc IGO 

ordered   to    enter    into    recogni- 
zance, 765 381 

certificate  granted  to,  768 381 

insolvent.     fSee  Insolvent  debtors. 

Dtfanlt 
judgment  on.     See  Judgment  on 
failure  to  attstcer. 

Decree.     See  Judgment. 

defined 10.  96 

for  sale 108-117 

order  for  record  of,  in  recorder's 

office 228,236,  239 

may     operate     as     conveyance, 

when  423 


PAGE 

Deed.     See  Conveyance  ;  Written  instru- 
ment. 

with  lease  back,  a  mortgage 115 

order  for,  in  decree  of  confirma- 
tion    117 

of  land  sold  on  execution,  note....   155 

order  for 155 

t)rder    for   succeeding    sheriff    to 

make,  291 156 

order  for  master  to  make,  289 155 

for  entailed  estate  sold 261 

order  for  guardian  to  make,  715..  361 
of  assignment  for  benefit  of  cred- 
itor.*, filed.  727 367 

of  assignment  stricken  from  tiles, 

763 380 

obtained  by  fraud  set  aside,  864...  424 

decree  reforming,  865 425 

made  part  of  bill  of  exceptions...  496 

Demurrer 

time  for  extended,  how 28 

to  petition    sustained,  and    judg- 
ment  " 28 

overruled,  decree  taken 28 

or  answer  allowed 28 

sustained,  and  served 00 

petition  allowed 28 

sustained,  with  leave  to  amend.  28 

sustained,  and  judgment 29 

overruled,    with    leave   to    an- 
swer    29 

overruled,  and  judgment 29 

to  answer — 

sustained,  with  leave  to  amend.  29 

sustained,  wiih  judgment 30 

overruled,  with  leave  to  reply..  30 
to  indictment  overruled,  and  plea 

of  not  guilty,  937 4G6 

sustained,    and     prisoner    dis- 
charged, 938 467 

sustained,   defendant  discharged. 

938 467 

Deposit 

for  costs,  order  to  increase,  264...   141 
in    appropriation     case    ordered, 

789 388 

Depositioti 

when     testimony    taken     before 
master  may  be  used  as, 

note 71 

commission  to  take 87 

exceptions  to  sustained 87 

exceptions  to  overruled 8( 

how  introduced  into    bill    of  ex- 
ception   495 

Devisee 

order    to    distribute    stock     and 

bonds  to,  623,  624 324 


518 


INDEX. 


Diminution  of  record  402 

order    for    complete     transcript, 

823 403 

Directors 

of  corporation,  decree    of  ouster 

against,  846 412 

and  order  for  new  election,  847.  418 
of  bank  ordered  to  give  securiry, 

851 415 

bond  approved,  852 415 

Discharge 

of  jury — 

for  sickness,  etc 59 

by  consent GO 

being  unable  to  agree  (iO 

by  withdrawal  of  jury 61 

of  prisoner  in  habeas  corpus — 

order  for,  429 232 

refused,  430 232 


Discovery 
decree  for. 


Dismissal  of  action 

for  want  of  necessary  party 

for    failure    to    separately    state 

causes  of  action,  etc 

judgment  of 

for  want  of  jurisdiction 

entry.  211 

when  a  final  judgment 104, 

after  answer  or  counterclaim 

for  neglect  in  serving  otlier  de- 
fendants, 212 

without  prejudice,  213 

for  want  of  prosecution,  214 

for    want    of    necessary    parties, 

215 

for    failure   to   give  security  for 
costs  


89 


20 


104 
104 
105 
105 
105 

105 
105 
105 

106 

142 


Dismissal  of  appeal 

for  want  of  new  undertaking 77 

for  want  of  transcript 80 

for  want  of  petition 80 

for  want  of  jurisdiction 82 

Disobedience  • 

of  order  of  court  punished,  389...   208 
of  rule,  391 209 

Dissolution  of  corporations 210 

See  Corporations. 

Distribution 

See  Confirinatlon  and.  distribu- 
tion. 
of  bonds  and  stocks  by  executor 

ordered,  623 324 


PAGE 

Distribution 

without  bond  required,  624 324 

after  debts  are  paid,  660 340 

of  money  found  in  hands  of  for- 
eign executors,  626 325 

District  court.     See  Courts. 

Districts 

wreck,  county  laid  off  into,  532...  298 

Dividend 

on  dissolution  of  corporation,  399.  21i 

to  creditors,  400 212 

order  that  assignee  declare,  757, 

760 378,  379 

order  for  further,  758 378 

payment  of  claim  omitted  from, 

759 379 

Divorce  a7td  alimony 

when  case  continued 214 

leave  to  answer,  etc 214 

husband  enjoined  from  interfer- 
ing   with     children     or 

propert}' 214,  215 

decree  for  default,  406 215 

decree  for  on  pleadings,  407 215 

jurisdiction    of  court    continuing 

\n,note 216 

lien  on  real  estate  of  decree  for, 

note 217 

decree  refusing,  408 217 

decree    granting     to    defendant, 

409 217 

aliincmj',  pendente  lite,  410 218 

Docketiuy  case 

for  appellee,  and  judgment 79 

and  appeal  dismissed 80 

Docume/tts 

court    may    order  production  of, 

when  87 

order  to  produce 88 

order  to  produce  on  trial 88 

order  for  examination  of  out  of 

court 88 

order  for  private  examination  of.     89 

Dormant  judtpnent 

See  RcviiHir  of  judgmoit. 

Domer 

general  decree  for,  414 223 

decree  for,  as  of  a  third  part  of 

the  rents,  etc.,  414a 224 

decree  for,  in    property  .sold    by 

husband,  etc.,  415 225 

confirmation 225 

di'cree    when    dower   a.«signed 

by    metes    and    bounds, 

416 225 


INDEX. 


il9 


PAGE 

Dowe7' 

decree,     where    commissioners 
have  assigned  of   rents, 

etc.,  417 22G 

decree,    wiien    dower    was    de- 
creed  as   of   rents,  etc., 

417a 227 

fraudulent   assignment   of    lands 

as 227 

decree  for  recovery,  418 227 

of  insane  woman — 

dischargini;'    land    of    [contin- 

iXi'Ui] 228 

"committee  appointed   to  ex- 
amine, etc.,  41'J 228 

insanity    found,  and    appraise- 
ment ordered,  420 228 

decree  for  conveyance,  421 228 

conveyance  of  land  for  life  de- 
creed, 422 229 

money  set  off  as  dower,  428 229 

order  for  investment  of  monev, 

423 .'..  229 

barring  of 230 

order  securing    money  to    her 

use,  424 230 

final  decree,  325 230 

in  partition  pi-oceedings — 

how  set  off 234 

in  undivided  interest 234 

decree  for  sale,  451 245 

as  of  rents,  issues,  and  profits...  234 

paid  out  of  proceeds  of  sale 234 

general    decree    for    partition 

and,  439 237 

by  metes  and  bounds,   waived, 

no^e 237 

decree  for,  440 238 

money  value  given  in  lieu  of...   244 
sale  of  premises,  free  of,  451...   245 

sale  confirmed,  452 245 

being  waived,  etc.,  sale  by  execu- 
tor    330 

assignment  of,  in  sale  by  execu- 
tor, 635 331 

confirmed,  636 331 

assigned   of  rents    and    jirofits 

confirmed,  637 332 

money  value  of,  found,  etc 335 

in  equitable  estate,  value  given  in 

lieu  of,  647r/ 336 

in    property    sold    by    guardian 
waived,    by    metes    and 

bounds,  706 357 

when     not     waived     how     as- 
signed   357,  358 

order  for,  708 358 

assignment    of,    by   metes  and 
bounds    confirmed,    etc., 

711 859 

assignment   of,  as  of  rents  and 


Dower 

profits,   confirmed,    etc., 

712 360 

value  of,  determined,  716 361 

of  lunatic,  idiot,  or  imbecile....   363 
sale  of  right  of,  by  guardian,  720.  363 

Drunkard 

guardian  of. 364 

governed  by  what  laws 364 

order  that  guardianship  cease, 

723 364 

Due-bills 

disposition  of,  when  attached..  178,  184 
oi'der  that  receiver  collect,  etc., 

339 184 

Electio7i 

required  between  two  counts 22 

order  for 23 

between  inconsistent  and  incon- 
gruous clai  ms  23 

entry  of  between  counts 23 

iind  exception  taken 23 

to  take  premises  in  partition  pro- 
ceedings.   iSee  Pnrtiiioji. 
premises  not  to  be   sold    until 

d(!clined,  note 243 

of  widow  under  will 299 

entry  of,  555,  556 299,  300 

commis.sion  to  take,  (>57 300 

entry  on  retUrn  of,  558 300 

when  widow  unable  to   make, 
person    appointed,    etc., 

559 301 

entry  of  election,  560 301 

of  trustee,  day  fixed,  736 370 

of  directors,  order  for  new,  847...  413 
between  two  indictments,  order, 

924 462 

entry  on,  925,926 462,  463 

Enibezzleynent 

verdict  of 478 

should  assess  value,  note 478 

Entailed  estates 

sale  of 260 

how  made 260 

decree  authorizing,  473 260 

private  sale  authorized 261 

decree  of  confirmation,  etc.,  474.  261 
bond  of  trustee  approved,  etc., 

475 262 

Entries.     See  Jouriuil  entries. 

Equitable  interest 

sale  of,  to  pay  judgment 160 

decree  subjecting  to  payment  of 

judgment,  302 160 


520 


INDEX. 


PAGE 

Equitable  i?iterest 

decree   for  sale   of,  by  executor, 

647 ; 336 

sale  of,  confirmed,  648 337 

Etvoi- 

leave  to  amend  formal,  62 36 

in  written  instrument,  decree  cor- 
recting, 528 286 

in  appropriation  proceedings 389 

bond  for  stay  of  execution — 

order  fixing  amount  of,  811 398 

order  approving,  812 398 

execution      allowed      notwith- 
standing, 813 398 

order  staying  execution,  814 399 

reversal  and  judgment,  815 399 

what  necessary  to  justify,  iiote,  399 
form  of  finding  and  judgment, 

note 399 

for      refusing     a     new      trial, 

816 400 

and  decree  for  sale,  817 400 

and  cause  remanded  for  judg- 
ment, 818 401 

judgment    in    obedience    to 

mandate,  829  405 

and  cause  remanded  for  further 

proceedings,  819 401 

in  part,  and  affirmance  in  part, 

820 401 

affirmance — 

Avith  penalty,  821 402 

without-  penalty,  822 402 

diminution  of  record 420 

See  Diminution  of  record. 

in  judgment  of  justice 403 

judgment    affirmiid,  and  certi- 
fied back,  824  403 

affirmed,  and  execution,  825.  403 
reversed,  and  case  retained, 

826 404 

reversed    for  want   of  juris- 
diction, 827 ". 404 

costs  on  reversal,  iiute 404 

criminal  code — 

must   appear    affirmatively,  etc., 

note 486 

must  be  to  party's  prejudice,  wo/e,  486 
day  for  return  of  summons  fixed, 

978 485 

judgment  affirmed,  979 485 

in  capital  case,  981 486 

judgment  reversed,  980..    486 

Errors 

must  all  be  assigned  in  bill  of  ex- 
ceptions, ?;o^e  4   494 

Escaped  prisoner.     See  Prisoner. 


PA.OS 

Estate 

administration  of.  See  Adminis- 
iratioyi  of  estates. 

sale  of  entailed.  See  Eyitailed  es- 
tates. 

estimate  of,  filed  by  executor  or 

administrator 307 

question    ct)ncerning,    case    tried 

by  probate  court,  670....  343 

insolvent 345 

See     Commissioners    in     insol- 
vency. 

Estimate 

of  value  of  estate  filed  by  execu- 
tor, 566 307 

by  administrator,  567 307 

object  of  filing,  note 307 

Evidence.     See  Testimony. 

withdrawal  of,  from  jury.  See 
A  rresi  of  testitnony  from 
jury. 

bill  of 490 

entry  of,  reservation  on,  984....   492 
when  to  be  set  out  in  bill  of  ex- 
ceptions, «o<e 493,  494 

materiality  must   appear,  note 

2...'. 496 

exception    to     refusal     to    re- 
ceive   496 

bill  of    exceptions   nuist  show 

all 497 

Exo.mination 

of  books,  etc.,  order  for 88,  89 

witness  to   perpetuate   testi- 
mony, 529 287 

of  assignor,  order  for,  747 374 

Exaynining  court 453 

orders  made  by,  where  enter- 
ed   453 

prisoner  discharged  b}^  903 453 

prisoner    admitted    to    bail    by, 

904 454 

prisoner   remanded    to    jail    bv, 

905 \.  454 

finding  that  prisoner  was  not  in- 
sane, 906 454 

finding  insane,  907.......  454 

recognizance  fixed  by,  908 455 

Exceptions.     See  Bill  of  exceptions. 
entry  (.)f,  when  party  required  to 

elect,  etc 23 

to  depositions — 

sustained  87 

overruled  87 

need  not  be  taken  when 91 


INDEX. 


521 


PAGE 

Exceptions 

noted  to  decision  entered  on  the 

record 91 

order  allowing  bill  of 91 

withdrawn  92 

in   proceedings   in    allowance  of 

executor's  chiim,  etc 322 

to  account  of  adininstrator  heard, 

654,  055 339 

withdrawn,  (j56 339 

to  allowance  of  claim  bv  execu- 
tor  heard,  085...". 348 

to    guardian's     bond     dismissed, 

090 352 

witlidrawn 353 

bill  of  allowed,  1)50 474 

attornej'     appointed     to     argue, 

957 474 

must  be  taken  at  the  time  decis- 
ion is  made,  noie  3 494 

and  bill  must  show  it,  note  ?>...  494 

ground  of  to  be  stated,  iiote  5 494 

Kxecutlon 

proceedings  in  aid  of.  See  Pro- 
ceedimjs  in  aid  of  execu- 
tion. 

award  of,  on  judgments 97 

when    may   issue   on    decrtu)    for 

sale 100,  107 

for  balance  remaining  due  after 

sale  .' 119 

for  costs 141 

defined 152 

follows  judgment  of  course 152 

a  process  of  court 152 

issued  by  clerk 152 

order  for,  presumed 152 

award  of  in  entry  not  necessary..  152 

except  for  costs 152 

for  costs 152 

standing  order  for 152 

on  dormant  judgment,  set  aside..  153 

improperly  issued,  set  aside 153 

may  be  amended,  when 153 

leave  granted,  284 153 

order  to  sell  goods,  etc..  at  private 

sale,  285 153 

sale  of  real  estate  on 153 

See  Sale. 

when  levy  of,  is  set  aside 153 

allowed  in   favor  of  officer,  293...  157 
exemption  from.    See  Exemption. 
against  the  person — 

order  allowing,  299 158 

order  for  discharge,  300 159 

proceedings  in  aid  of 159 

See  Proceedings  in  aid  of  execu- 
tion. 

against  garnishee 180 


Fjxecution 

amercement  of  officer  for  failing 

to  execute  writ  of,  363...   198 
sued  out  by  officer  after  amerce- 
ment, 388 200 

against  executor  allowed,  616 322 

stayed  in  error  proceedings,  811..  398 
allowed     notwithstanding    bond, 

813 398 


order  staying,  in   error  case,  814..  399 

Executors  and  administrators 

See  Administration  of  estates. 

notice  of  appeal   by 76 

made  party  to  judgment,  281 149 

revivor   of  action  in    name  of, 

282,  283 150 

authorized  to   complete  contract 
lor  sale   of   real   estate, 

471 258 

letters  testamentary  granted    to, 

506 307 

bond  filed  by,  566 307 

bond  of.  dispensed  with,  566 307 

ordered  to   appraise    real    estate, 

560 307 

failing  to  give  bond,  570,  571 308 

declining    to    accept,    etc.,    570, 

571 308 

administration  during  minoritv 

of r I   309 

during  minority  of  one,  573.  309 

coming  ot  age,  entry,  574 309 

resignation  of  accepted,  etc.,  581.  311 

order  removing,  582 311 

administration     afier    death     of 

583 312 

time  for  -;ettlement  bv,  extended. 

.598 ". 316 

judgment  against,  form 321 

when  costs  recovered  from 321 

claim  of,  against  estate 321 

notice  of  hearing,  614 321 

order  allowing,  015 321 

appeal  and  exceptions 322 

execution  against,  allowed,  010...  322 
judgment  of  waste  against,  017...   322 
when  amount  can  not  be  ascer- 
tained, 018 322 

notice    of   appointment   allowed, 

etc.,  622 323 

foreign — 

compelled  to  account 325 

order  for,  025 325 

attachment 325 

order  distributing  money  found 

in  hands  of,  020 325 

copv  of  appointment  of  filed, 

048 337 

account  of.     See  Account. 


522 


INDEX. 


PAGE 

Execution 

compensation  of.     See  Compensa- 
tion. 

allowance  to,  for  special  services, 

659 340 

account  of  allowed  as  final   dis- 
charge, 661 340 

failing   to   pay    money,    citation 

against,  664 341 

non-resident,   order  Jor   publica- 
tion against,  66.5 342 

authorized  to  act  as  commission- 
ers in  insolvency,  682....   347 

bond  of.     See  Botid. 

removed  for  failing  to  give  new 

bond,  672 344 

de  bonis  non  — 

appointed  on  ren)oval  of  form- 
er administrator,  672 344 

ordered  to  give  new  bond,  673....  344 

account  t)f,  order  for 344 

in  insolvency  cases 349 

ordered  to  invest  money  pending 

suit,  780 384 

maj'   apply  for  appraisement   of 
assets    of      partnership, 

807 39.5 

Executrix 

letters  granted  after  marriage  of, 

585 ^. 312 

Exemption  frotn  execution 
homestead.     See  Homestead. 
re-assignment   of  homestead   or- 
dered, 298 158 

Ex  parte  case,  title  of. 11 

Expenses 

allowed  to  executors.  659 340 

Fact 

question  of,  not  put  in  issue 13 

order  for  trial  by  jury,  2 13 

verdict,  3 ".. ! 14 

order  referring,  4.  14 

Facts 

separate  finding  of. 63 

agreed  statement  of.  bill  of  excep- 
tions on 501 

Faiher 

enjoined    from     interfering    with 

children 214 

allowed  to  visit  children 214 

Fees 

of  witnesses,  when  not  recovered.     84 

of  counsel  in  partition  cases 237 

rule  for 239 


PAGB 

Fees 

of    attorney'   allowed    in    assign- 
ment case,  760,  761 379 

Felony 

recognizance    fixed,    in    case    of, 

902 4.53 

sentence  for,  suspended,  967  481 

Files 

mutilation  and  alteration  of 31,  34 

pleadings  stricken  from 31 

Filing 
of  desperate  claim  for  benefit  of 

creditors,  608 319 

Finding.     See  Trial. 

what   entered    on    trial    by   the 

court 62 

to  be  prefixed  to  judgments 99 

Fine 

imposed  on  witness  refusing  to  be 

sworn 86 

imposed  by  building  associations.  120 
for  disobedience  of  injunction  im- 
posed, etc.,  348 190 

imposed    for    misbehavior,    etc., 

384 206 

for  disobedience,  etc.,  389 208 

fur  contempts,  392 209 

imposed  in  mandamus  case,  840..  409 

sentence  imposing 479 

testimony  to  mitigate,  note 479 

Foreclosure.    See  Mortgage. 

Foreign  judgment 

when  action  maintained  on 426 

judgment  on,  866 426 

Foreign  vill 

presented   for  record,  publication 

ordered,  .550« 297 

admitted  to  record,  551 298 

Foreman 

of  grand  jury,  oath  of 488 

Forfeiture 

of  recognizance,  913 456 

opened  up,  914 457 

Fraud 

judgment  vacated  for 145 

conveyance  set  aside  for,  864 424 

Freeholders 

appointed  in    contest   of  justice, 

804 394 

judgment  on  decision  of.  805 394 


INDEX. 


523 


PAGE 

Fur}iitu7-e 

decreed  to  wife 217 

pendente  lite,  410 218 

Gai-7ns/iee 

examination  of. 177 

order  for  special,  325 177 

proceedings  against  to  compel  an- 
swer    179 

action  against 179,  180,  181 

ordered  to  deliver  property,  etc., 

179,  ISO 

execution  against 180 

ordered  to  deliver  property  into 

court,  328 180 

ordered  to  pay  money  into  court, 

329 180 

order  complied  with,  etc.,  330..  180 

discharge,  order  for,  330 180 

order  permitting  to  retain  prop- 
erty, etc.,  331 181 

action  against — 

when  action  against,  dismissed,  181 

when   judgment   rendered 181 

judsment,  333  181 

same    on    failure    to  answtM-, 

etc.,  334 182 

ordered    to  pay  to  plaintiff,  336, 

337 183 

released  from  liability 187 

Qertnaii  ddveriiacmod 

dispensed  with  in  sale 109 

order  dispensing  with,  280. 154 

dispensed  with  in  partition  pro- 
ceedings    243 

Goods.     See  Chaih-ls. 

in  cust(>d}'  of  receiver 195 

order  tor  sherifl'  to    withdraw 

levy,  359 195 

order  permitting  levy  on,  300..  195 

Grand  jur// 

when  return  of  venire  is  made...  440 

formation  of 457 

entry  on  return  of  venire  for,  915,  458 
witness    before,    refusing    to   an- 
swer    459,  460 

juror  in  place  of  one  sick,  919 400 

formation  of  new,  920 400 

record  of  witnesses  before 461 

report  of,  and  proceedings  on 401 

entry  on  report,  921 4i)l 

oath  of  foreman 488 

of  juror  488 

Guardian 

order  substituting  for  next  friend, 

6  10 

may  consent  to  partition,  note 230 


PAGE 

Guardian 
of  minor — 

appointed     for     minor     under 

fourteen    years,  686 350 

appointed      on      selection      of 

minor,  687 351 

on  failure  to  select.  688 351 

mortgage  received  from,  in  lieu 

of  bond,  689 351 

bond  of.     See  Bond. 

notices  to,  by  citation 353 

removed  for  failing  to  file  in- 
ventory, 696 353 

for  other  causes 354 

on  removal  of    ward  to   an- 
other state,  702 355 

accounts  of 353 

order  for  special,  697 353 

loaning   and    investing  ward's 

money 354 

order  authorizing,  698 354 

resignation   of,  accepted,  701...  354 
foreign — 

authorized  to  receive  money, 

etc.,    703 .'..  355 

sale  of  real  estate  by 356 

See  Sale. 

ordered  to  make  deed,  715 361 

leasing  of  real  estate  bv  361 

order  for,  718 .'  362 

sale   of    dower    right    by,    ap- 
proved,   720 303 

of  lunatics,  idiots,  and  imbeciles..  362 

letters  granted  to,  719 362 

orders  relating  to,  same  as  for 

m i n ors 303 

sale  of  real  estate  by 363 

lease  of  real  estate  by 363 

completion  of  real  contract  by.  303 
foreign,  authorized  to  act,  etc., 

721 303 

entry  of  termination  of,  722....   304 
of  drunkards — 

governed  by  what  laws 364 

order  that  <;nardianship  cease, 

723..V 304 

foreign — 

order  for  payment   of   money 

to,  725' "..   305 

Gnardinn  ad  litem 

appointment  of 1  7 

entries  appointing,  10,  11 ]S 

must  be  served  or  appear 18 

order  removing,  9 17 

of  insane  woman,  in  dower  pro- 
ceedings, 419 228 

in  sale  of  real  estate  by  guard- 
ian    356 

Habeas  corpus 
one  of  the  great  writs,  etc 231 


524 


INDEX. 


PAGE 

Hahens  corpus 

state  courts  have  power  in 231 

judge  at  chambers,  power  in 281 

writ  granted,  420 231 

writ  refused,  427 231 

case  continued,  on  return  of  writ, 

428 282 

order  discharging  prisoner,  429...  232 

order  refusing  discharge,  430 232 

allowing  bail.  431 232 

custody  of  minor  given,  432 233 

Hanging 

sentence  of 480 

escaped     prisoner    recaptured, 

971 482 

suspended,  982 487 

Hearing 

of  appropriation  case,  time  fixed, 

781 385 

Hetr-loonifi 

order  for  delivery  of,  512 278 

when  replevied 265 

order  for  slieriff  to  retain,  478..  265 
order  for  delivery  of,  485 269 

Heirs 

unknown.     See  Unknown  heirs. 
judgment  for  conveyance  to,  572..  250 

Homestead 

re-assignment  of  ordered,  298 158 

order  that  appraisers  set  ofJ',  746..  y74 
real  estate,  sale  uf,  32S 332 

Uiisl.ainl 

mud«'  party  to  ai'linn,  14 I'.i 

enjoined    trnm     interfering    with 

cliildren,  etc 215 

allowed  to  visit  cliildren 215 

enjoined  from  disposing  of  prop- 
erty, etc.,  413 221 

notified  of   will  being  presented 

for  probate,  542 294 

Husband  and  wife 

See  Married  women. 
judgment  against,  etc.,  869 429 

Idiot 

guardian   of 362 

See  Guardian. 

dower  interest  of  wife  of 363 

trustee  of  non-resident 364 

See  Trustee. 

Imbecile 
guardian    of 301 

See  Guardian. 
dower  interest  of  wife  of...  363 


PAGE 

Imbecile 
trustee  of  non-resident 364 

See  Trustee. 

Impaneling  of  jury 56 

Impriso7inieni 
of  witness  refusing  to  be  sworn.  .     86 

discharge  of  witness  from 86 

ordered  for  contempts    of  court, 

384,  389,  392....  206,  208,209 

until  acts  be   performed 209 

discharge  from,  ordered,  396...   210 
of    person    refusing    to    produce 

will,  ordered  for,  537 292 

discharge  from,  538 293 

Improvement  of  streets 

assessment  for  420 

Incongruous  claims 

election   between  required 23 

order  fur 23 

Inconsistent  claims 

election    between  required 23 

order  for 23 

Indictment 

quashing  of,  when  granted 462 

order  for  (Election   between    two, 

924 462 

entry  on,  925.926 462,403 

quashed,  prisoner  committed,  931.  465 

prisoner  bailed,  932 465 

motion  to  quashed  overruled,  933.  465 
quashed    and   prisoner  detained, 

955 474 

Infant.     See  Parties  to  action. 

judgment  by  default  against 123 

adoption  of 392 

Injunction 

appeal  from  order  dissolving,  76,   76rt 

for  judgment  for  77 

in  proceedings  in  aid,  etc 105 

kinds  of 188 

restraining  order.     See  Restrain- 
ing order. 

as  a  provisional  remedy 188,189 

what  notice  required 189 

appeal  from  order  dissolving...  189 

disobedience  of   how  punished,  189 

falls,  when  action  dismissed..  ..  189 

order  allowing,  347 189 

fine  for  disobedience   imposed, 

etc.,  348 190 

security 190 

additional  or  new 190 

order  for  additional,  349 191 


INDEX. 


oza 


PAGE 

Injunction 

order  vacatin;;,  350 191 

order  modifying,  350 191 

as  a  final  judgment 188,  191 

temporary,     made     perpetual, 

352 191 

decree  for  injunction,  353 192 

Inquiry  of  dcnnages 

after  judgment  by  the  court 139 

verdict  on  assessment  of 140 

judgment  on  the  assessment....  140 
in  replevin  — 

after    judgment    for    plaintiff, 

505 270,  277 

verdict,  489,  5U0 277 

judgment,  507 277 

Insane  jterson.     See  Pai  ties  to  action. 

Insane  ivoynan 

dower  of.     See  Dower. 

Insanity 

of  part}-,  order  for  trial  of,  9a....     17 
committee    appointed    to    deter- 
mine, etc.,  419 228 

of  woman  found,  etc.,  420 228 

entry  finding,  802 393 

of  prisoner  found  by  examining 

court,  907 •. 454 

of  convict  found,  etc.,  972 482 

entry  tinding  no,  973 483 

Insolvent   (tebfors  3GG 

voluntary  assignments  by 3G7 

See  Assignment ;  Assignor. 
commissioner    of    insolvents    ap- 
pointed, 7d4 380 

dav  set  for  creditors   to    appear, 

767 381 

Inspection  of  documents 87 

Instrument 

written,  decree  correcting,  528....  286 

Interest 

on  judgments,  how  calculated....     97 
to  be  charged  by  building  associ- 
ation ..'. 120 

on  judgment  by  confession 131 

Interpret'' r 

oath  (»f 444 

Inter  roga  tories 

order  for  answer  of 33 

judgment  when  not    answered...     33 
answer    to,   enforced    by    attach- 
ment       33 


PAGE 

Inventory 

to  include  appraisement  of  real 

estate,  566 307 

order  for  return  of,  590 314 

on  failure  of   executor  to  return 

attachment  ordered,  591.  314 
order  committing  to  jail,  etc., 

592 314 

letters  revoked,  593 314 

guardian  removed  for  failing  to 

iile,   696 353 

return  of,  how  enforced 355 

of  assets,  etc.,  of  partnership  re- 
turned and  filed,  808....   395 
Investment 

of  money  given  as  dower  of  ii>- 
sane  woman  ordered, 
423 229 

in  case  of  sale  of  entailed  estate, 

ordered,  474  261 

of  unclaimed  money  ordered,  662.  341 

monev  of  ward  bv  guardian 354 

order  for,  698.. .1 3-54 

ol  monej'.  bv  administrator,  pend- 
ing  suit,  780 384 

Irrelecunt  matter 

stricken    from    pleading  31 

Issue 

triable  only  by  court,  finding  on,     99 

joined,  general  finding  on 99 

order  making  up  for  jury,  in  pro- 
ceedings to  contest  will, 
523 285 

order   for  re-trial    of   in    district 

court,  ')2(; 286 

Jail 

special  administrator   committt-d 

to.  578 310 

committal  to,  on  failing  to  return 

inventory,   592 314 

committing    one   to.   refusing    to 

answer,  595 315 

sentence  sending  to 480 

Joint  session  of   common  pleas 8 

forms  in 8 

opening  minutes  of 8 

opening  daily  sessions  of 8 

minutes,   how    signed '■' 

in  Hamilton  county '■' 

Journal 

all  judgments  and  orders  entered 

on 10 

signing  of  by  judge 10 

orders  of  judges  at  chambers  to 

be  entered  on 231 

Journal  entries 

defined 10' 


626 


INDEX. 


PAGE 

Journal  entries 

in  chambers 9 

in  vacation 9 

in  general  term 492 

Judfje 

pi-esiding,  to  sign  minutes 9 

appointment  noted 9 

assignment  of,  noted...  9 

signing  chamber  entries 9 

orders  made  out  of  court  by 10 

signing  of  journal  by 10 

authority  of,  in  aid  of  execution, 

163,  164 
minutes    of,    in     supplementary 

proceedings 174 

at  chambers  has  power  in  habeas 

corpus 231 

orders  of,  to  be  entered  on  jour- 
nal     231 

probate — 

question    submitted  to,   by  ad- 
ministrator, 668 343 

one  of  examining  court,  903....   453 

Judgment 

in  chambers 9 

in  vacation 9 

includes  what 10 

how  headed 10 

summary  of,  annexed  to,  note 13 

defined 10,  96,97 

must  be  entered  on  journal 10 

in  entering,  names  of  parties  set 

out   in   full  10 

indexingof 10,  11 

may  be  given  oil  demurrer  to  pe- 
tition being  sustained...  28 

entry  of 29 

after  demurrer  to  petition   over- 
ruled    29 

after   demurrer   to    answer    sus- 
tained   30 

when  interroeatories  not  answer- 
ed ...^ 33 

after  tender  made  before  suit 39 

after  tender,  for  assessed  value...  40 
after   tender,  allowing    perform- 
ance   40 

when  tender  not  sufBcient 40 

on  verdict  after  tender  proved...  41 

after  offer  to  confess,  etc 42 

offer  to  confess 42 

on  offer  to  allow,  etc.,  accepted...  42 

after  offer  to  allow,  etc..  rejected.  42 

after  offer  to  confess  part 43 

of  abatement 44 

on  controversy  submitted 64 

on  trial  by  the  court,  when    en- 
tered    62 


Judgmeni. 

on  report  of  referee.     See  Report 

of  referee. 
exception  to,  need  not  be  taken...     91 

interest  on,  how  calculated 97 

costs  included  in 97 

agreements  incorporated  in 97 

should  dispose  of  all  parties 97 

award  of  execution  on 97 

on    finding   previously  made    by 

th»  court 98 

when  no  motion  for  new  trial 

has  been  made,  197 98 

same,  for  defendant,  197a 98 

motion  overruled  and  judg- 
ment, 197?> .^     98 

formulae  for 99 

finding  I.,  II.,  Ill 99 

IV 100 

forms  of — 

for     plaintiff,     in     action     for 

money,  198 100 

for  one  of  several  phiintiffs,  200.  100 
against  one  of  several  plaint- 
iffs, 208 103 

for  one  of  several  def'ts,  207...   103 
against  one  of  several  defend- 
ants, 200 100 

in  favor  of  one  defendant  and 

against  another,  201 101 

by  default  against  one  defend- 
ant, and    on    submission 

against  another,  202 101 

on  counter-claim  or  set-ofl' 
after  petition  dismissed, 

210 104 

for    balance,    after    admitting 

counter-claim,  205 102 

for  defendant,  on  petition  and 

counter-claim,  209 103 

when  counter-claim  exceeds 
plaintiff's     claim,      etc., 

2\0a 104 

for  plaintiff,  for  amount  ad- 
mitted by  answer — bal- 
ance waived,  203 102 

same— case     continued    as     to 

balance,  204 102 

for  defendants  for  costs,  206....    102 
of  dismissal.     See  Di'smissal. 
may  be  given  with  decree  for  sale,  106 

to  what  extent,  7iofe 106 

persoiuil,    with    decree    for    sale, 

note 106 

personal,  after  decree  for  sale 118 

judgment,  266 118 

upon  failure  to  answer 122 

only  for  amount  on  summons...   123 
can  not  be  rendered  against  in- 
fants     123 


INDEX. 


527 


Judgment 

for  less  than  claim 123 

what  proof  reqiiinid VIZ,  VIA 

finding  for 124 

forms  of 124,125 

case  sent  to  referee,  etc 120 

iSee  Reference. 

case  sent  to  jury 128 

to  assess  damages 12H 

verdict  on  assessment 12H 

judgment  on  verdict 129 

remittitur 12!) 

entry  of 12!) 

order  for loO 

by  confession 1:50 

how  made loO 

interest  on lol 

when    defendant    aj>j)ears  \m-y- 

sonally 1 

on  petition  filed 1 

when  no  petition  filed 1 

when  defendant  appears  by  at- 
torney   1 

judgment 1 

manner  of  giving  and  entering...  1 

on  verdict 1 

when  entered V.Vi 

when  verdict  is  special 13:5 

follows  overruling  of  motion...  1M3 

forms  of 133,1 

on    the    pleadings,   and    notwith- 
standing verdict 135,  130 

non  obstante  veridicto 135,  136 

on  the  pleadings 130 

and  case  referred 137 

and  case  sent  to  jury 137 

notwithstanding  verdict 137 

forplaintiff 137 

after  damages  assessed  by  jury,  138 
and  inquirv  of  damages  is  or- 
dered  T 138 

inquiry  of  damages  after 139 

for  costs  141 

vacated  after  term,  liow 143,  144 

entries  for,  272,  273 1J5 

new  trial  after,  -nofe 145 

new  party  to 140 

judgment  making 140 

revivor  of 147 

See  Revivor  of  judr/ntrtit. 

execution  on  dormant,  set  aside  ..  153 
representative    made    party     to, 

281 .■ 149 

enforcement  of 151 

(See  E.recuiioji. 

satislaction  of,  vacated,  292 150 

order    that    property  be    applied 

to,  when   made 171 

order,  313 171 

when     in     hands    of     third 

party,  314 172 


P.VGE 

Judgment 

order  that  receiver  pay  off,  317...   173 
order  that   receiver  apply  funds 

to,  318  174 

will    be    rendered    against    gar- 
nishee, when 181,  182 

of     amercement,     surety     made 

party  to,  367 199 

in  bastardy  case — 

for  maintenance,  380a 204 

necessary  finding  in,  note 2U4 

can  imt  be  for  gross  sum,  7iote..  204 
money  on   bond    forfeited,  ap- 
plied to  payment  of.  204,  205 
attached    property    applied    to 

payment  of 205 

reduced  on  death  of  child,  383..  205 

against  executor,  form  of ;....   321 

in  common  pleas  on  appeal  from 

probate  court,  779 384 

in  district  court — 

on  error,  form  of,  note  3 390 

which    court    below    ought   to 

have  rendered,  Jiote 399 

of  a  justice,  error  in 403 

See  Error. 
in  obedience  to  a  mandate,  829.  405 

foreign,  action  on 426 

judgment  on,  866 426 

arrest  of  granted,  970,  !'77 485 

affirmed  on  error,  979 485 

in  capital  case,  981 480 

reversed  on  error,  980 486 

Jurisdiction 

what  essential  to,  in  proceedings 

in  aid  of  execution 164 

continuing,  in  divorce  case,  note..  216 
of  justice,  judgment  reversed  for 

want^if,  827 404 

Juror 

punishment  of 54 

for  refusal  to  serve 54 

for  disobeying  order >54 

for  misbehavior 55 

proceedings    against  struck  jury 

dismissed 55 

jury  discharged  lor  sickness  of...  59 

order  substituting 60 

withdrawn  and  case  continued...  61 
for  grand   jurv  in  place    of  one 

sick,  919 460 

oath  of 488 

Jurors 

order  fixing  number  of  for  year..  48 

amended 48 

order    for    additional    apportion- 
ment of 48 

drawn  for  special  term 50 


528 


INDEX. 


PAGE 

Jury.     See  Petit  jury;   Grand  jury. 

order  for  trial   by,  question    not 

put  in  issue  by  pleading, 

2 13 

verdict,  3 14 

order  for,  to  try  question  of  sanity 

of  party,  9« 17 

impaneled  and  sworn 56 

polling  of 56 

discharge  of,  before  verdict 59 

for  sickness,  etc 59 

by  consent 60 

being  unable  to  agree 60 

waived 63 

finding  vn 99 

case  sent  to — 

after  judgment   by  default 1*28 

after  judgment  on  pleadings...   137 
after  judgment,  notwithstand- 
ing verdict 138 

ordered  in  appropriation  case,  783  386 

impaneled,  7S6 387 

to    absess    value    of    abandoned 

road-bed,  etc.,  795 390 

to    try    question    of    insanity    of 

prisoner,  928 '.. 464 

entry  of  verdict,  929 464 

oath  of 444 

how  made  up  in  capital  case 470 

entry,  948 471 

how  made  up  in  other  case 472 

order  for,  to  view  place,  949 472 

discharge  of,  before  verdict 476 

polling  of. 477 

grand,  oath  of 488 

petit,  oath  of 488 

Justice  of  the  jieace 

appeal  from,  to  common  pleas 79 

replevin  cases  c(;rtified  fi-om 273 

See  Rejdevin. 
order  increasing  number  of,  803..  393 
citation,  etc.,  in  case  of  contest, 

804 394 

error  in  judgment  of. 403 

See  Error. 
judgment    reversed    for  want    of 

jurisdiction  of,  827 404 

K/n 

next,   notified  of  will    presented 

for  probate.  542 294 

Land.     See  Heal  estate. 

fraudulently  assigned  as  dower, 
decree  for  recovery  of, 
418 227 

discharged    of   dower    of    insane 

woman 228 


PAGE 

La7id 

occupation    of    before    appropri- 
ation    391 

Larceny 

verdict  of 478 

should  assess  value,  note 478 

Law 

separate  finding  of 63 

what    regarded  as  conclusion   of, 

7iote 64 

Lease 

of  premises  subject  to  mechanic's 

lien,  877 435 

of  real  estate  by  guardian 361 

See  Real  estate. 

Leasehold  estates 

when  right  of  re-entry  exists  426 

judgment  may  include  what 426 

sales  of  how  much 426 

judgment    forfeiting    lease,    etc., 

867 427 

judgment    for    rent   atid    sale   of 

premises,  868 427 

confirmation  of  sale,  how  much..  428 

Legatee 

order    for    distribution    of    stock 

and  bonds  to,  623,  624...   324 
Legislature 

member  of,  proceedings    against 

stayed 24 

Letters 

of  guardianship.     See  Guardimi. 
testamentary — 

order  granting,  566 307 

of  administation  revoked — 

order  for,  593 314 

Levy 

of  execution,  when  set  aside 153 

on  goods  in  hiinds  of  receiver 195 

See  Goods. 
illegal,  of  taxes  enjoined,  517 282 

Lien 

of  divorce  decree,  on  real  estate, 

note 217 

for  street  assessment — 

decree  enforcing,  861 422 

of  mechanics — 

lu>w  enforced 434 

personal  judgment  and  decree 

for  sale,  876 434 

order  to  lease  premises,  877 435 

of  vendor — 

decree  for  sale  on,  887 440 

on     property    sold     determined, 

when,  note 112 


INDEX. 


529 


Life  estate 

how  set  off  in  partition  proceed- 

inirs 234,  235 

in  undivided  interest,  decree 

for  sale,  free  of,  451 245 

sale  confirmed,  452 245 

Loarting 

money  of  ward  by  guardian 354 

order  for,  608 '. 354 

LuiKiilc 

guardian  of 302 

See  (luardiuit. 

dower  interest  of  wife  of 362 

trustee  of  non-resident 364 

See  Trustee. 

Mandamus 397,  400 

issued  by  what  courts  406 

order   to   show  cause    why    writ 
should    i\ol   be   allowed, 

830 406 

writ  of — 

order  allowing  alternative,  etc., 

831  406 

order  allowing  peremptory,  etc., 

832.  407 

order    allowing    after    notice, 

etc.,  833 407 

order  refusing,  834 407 

judgment  allowing  peremptory, 
when   no   answer   mutle 

to  alternative,  835 408 

on  trial,  836 408 

when  damages  given,  837 408 

when  case  sent  to  jury  for  as- 
sessment    of    damages, 

837rt 409 

judgment    for   costs,    alternative 

writ  obeyed,  838 409 

judgment  for  delendant,  839 409 

judgment   for   plaintiff  and   line 

impo-sed,  840 409 

special  order  for  auditor  to  levv 

ta.\,  etc.,  841 '..  410 

Mandates 

how  entered  on  journal 405 

order  for  execution  on 405 

judgment  in  obedience  to,  829....   405 
form   of 503 

MarruKjc 

decree  declaring  void,  412 221 

of  executrix,  etc.,  letters  granted, 

585 312 


Married  women 
[Repealed     and     omitted     in 
body  of  book.] 

Master  Commissioner 
trial  by — 

liow  conducted 70 

regular  or  special 70 

order  appointing  re.f!;ular 71 

how  special  appointed 70 

what  cases  referred  to 70 

report  of 70 

judgment  on,  and  appeal 70 

order  of  reference  to 71 

to  special  master 71 

undertaking  of,  •note 71 

testimony  taken  by,  used  as  depo- 
sition, note 71 

special,  when  to  give  bond,  note..  72 
report   of    confirmed   and  judg- 
ment    72 

exceptions  to  report  of,  in    part 

sustained <^ 

exceptions   to   report    sustained, 

and  report  set  aside 1'^ 

reference  to,  as  before  the  code...  73 

report  of  must  be  confirmed....  73 

order  confirming 74 

order  of,  to  take  an  account....  74 

to  ascertain  a  fact '4 

special — 

may  sell  real  estate 106 

order  for 109 

give  bond  when 106 

sheriff  may  sell  as,  note 108 

bond  ordered 109 

order   for,   to  make  conveyance, 

289 155 

to  report  names  of  stockholders...  160 
to  report  value  of  equitable  in- 
terest, etc 100 

to  take  examination  of  garnishee,  177 

authority  in  partition  cases,  note,  243 
may    sell    on    chattel    mortgage, 

note 423 

Means 

compelling  defendant  to  disclose.  160/ 

Mechanics  lien.     See  Lioi. 

Member  of  legislature 
proceedings  against  stayed 24 

Metes  afid  bounds 
dower  by,  waived. 


See  Dower. 


530 


INDEX. 


Minutes.     See  Jourval. 
opening  of.    See  Opening  minuies. 
closing  of.    See  Closing  minutes. 

of  joint  session,  liow  signed 9 

in  Hamilton  county 9 

posting  of,  to  appearance  docket, 

note 13 

of  judges  in  supplementary  pro- 
ceedings    174 

31inor 

custody  of  awarded,  432 233 

guardiansJaip  of.     See  Guardian. 
guardian  appointed  for,  when  un- 
der fourteen  years,  686...  350 
guardian  appointed  on  selection 

of,  687 351 

on  failure  to  select,  688 351 

removing  to  another  state 355 

trustee  of  non-resident 364 

See  Trustee. 


Minority 
of  executor, 


administration  dur- 


309 
309 


granted  to  other,  of  age,  5' 

Misbe/iavior 

in  presence  of  court 206 

punishment  for,  384 206 

Misdemeancr 

after  conviction  of,  order  for  rec- 
ognizance   to  keep    the 

peace,  894 449 

sentence  for,  suspended,  966 481 

by  court  of  error,  983 487 

Misjoinder 

demurrer  sustained  for,  and  sev- 
eral petition,  allowed,  37.     28 
Mistake 

judgment  vacated  for 145 

Mojiey 

in    hands    of    third    person    sub- 
jected, etc 

deposited  in  lieu  of  bail 

order  for  safe  keeping  of,  319... 

order  refunding,  320 

garnishee   ordered    to    pay    into 

coiu-t,  329 

order  complied  with,  etc.,  330... 
order  that  garnishee  retain,  331... 
order  for  receiver  to  invest,  357... 
given  as  dower  of  insane  woman 

invested,  423 

secured     to     insane    woman,    as 
dower,  by  mortgage,  424. 
found  in  hands  of  foreign  execu- 
tor distributed,  626 

unclaimed,  order  for  investment 

of,  662  

payment  to  distributee,  663 


160 
175 
175 
176 

180 
180 
181 
194 

229 

230 

325 

341 
341 


PAGE 

Money 

citation  against  executor  for  fail- 
ing to  paj',  664 341 

loaning  and  investing  by  guard- 
ian, 698 354 

order  for,  698 354 

foreign    guardian    authorized    to 

receive.  708 355 

order  for  investment  of  pending 

suit,  780 381 

Mortgage.     See   Sale  of  mortgaged, 
property. 

given  to  indemnify  foreclosed 113 

deed  and  lease  declared  to  be  a...   115 
satisfaction  of,  ordered  to  be  en- 
tered    117 

to  building  association  foreclosetl, 

119,  122 
received  from  guardian  in  lieu  of 

bond,  689 351 

chattel 423 

foreclosed  when  court  has  ju- 
risdiction of  parties 423 

judgment  and  decree  for  sale, 

862 423 

confirmation 423 

Mother 

suggestion  of  death  of,  382 205 

Motions 

continuance  at  end  of  term 7 

when  to  be  filed  by  leave 37,  38 

order  for 38 

order  for  and  notice  ordered....  38 

granted  or  overruled 38 

for  new  trial — 

when  filed 92 

after  judgment  entered 92 

made  within  the  term 92 

granted  after  verdict 92 

granted  after  report  of   ref- 
eree   93 

granted  after  decision  by  the 

court ! 93 

overruled 93 

overruled    and    judgment    en- 
tered, 1976 98 

for  new  trial  after  verdict 133 

overruled   and  judgment,  252, 

2ij-2a 135 

to    quash    indictment    overruled, 

933 465 

for  new  trial  granted,  974 484 

overruled,  and  sentence,  975....  484 
in    arrest  of  judgment   granted, 

976,  977 485 

case  reserved  to  general  term  on, 

985 492 

ISa)He 

action  in  wh(.)se  15 

of  real  party  may  be  substituted,  15 


INDEX. 


531 


Narnt 

of    party    may    be    added    to    or 

stricken  from  title 15 

maiden,  divorced  wife  restored  to,  217 
of  person,  decree  clmni^inj^,  520..  283 
of    town,  etc.,  decree   ciianging, 

521 284 

of  incorporated  company,  decree 

changing,  522 284 

of  party — 

corrected  on  plea  in  abatement, 

9:W 46G 

stricken  from  pleading 85 

order  for  35 

added  to  process 35 

order  correcting 35 

real  substituted  for  fictitious....     3G 

Nnini'S 

of  parties  set  out  in  full  in  enter- 
ing judgment,  etc 10 

liaturuLizaiion 

admission  after  declaration  of  in- 
tention, 878 435 

admission  of  discharged  soldier, 

879 430 

of  person  couiiug  to  tiie  U.  S. 
under  eighteen  years  of 
age.  880r. !! 43G 

of  seaman,  881  43(i 

alien  renouncing  title,  882 437 

SegotidOlc  jKiprr.     See  Sotrs. 

subjected  to  payment  of  judg- 
ment how.. 160 

should  be  produced IGO 

innocent  holder  of. IGO,  IGl 

New  pariy.     See  Parties  to  nctlon. 

Neil-  trial 

motion  for  when  tiled 92 

on  motion  made  within  the  term,  92 

after  verdict,  194 92 

after  report  of  referee,  195 93 

after  decision  by  the  court,  195;/.  93 

motion  for,  overruled,  1956 93 

on  petition  after  the  term 93 

judgment  for,  196 93 

judgment  adverse  to,  196a  94 

judgment  for,  after  final  judg- 
ment, 270 144 

judgment  adverse  to,  271 144 

by  reason  of  mistake,  etc.,  272....  145 

by  reason  of  fraud,  etc.,  273 145 

granted  to  defendant  construct- 
ively summoned,  274 145 

after  judgment  vacated,  note 145 

jgranted    in    appropriation    case, 

787 387 


PAGE 

New  trial 

reversal,  for  error  in  iefusing,  816,  400 

order  granting,  974 484 

order  refusing,  975 484 

Next  of  kin 

letters  of  administration  granted 

to,  567 307 

declining  administration,  568 307 

Nolle  prosequi  i 

entry  of,  965 479' 

Non-resident 

doing  business  in  the  state,  admin- 
istration   of    assets    of, 

579 311 

when  owner  of  property  appro- 
priated,  how    protected, 

793 389 

Nonsuit 

ordered  unless  interrogatories  an- 
swered       33 

Notes.     See  NeyotidOle  j>a/>er. 

when  cost  of  protest  included  in 

judgment 97 

part  of  several  due  and  sale  de- 
creed     112 

confirmation  and  distribution...  119 

should  be  filed  in  court,  when 124 

disposition  of  when  attached 178 

order  that  receiver  collect,  etc., 

339 184 

order   that   executor   distributes, 

660 340 

Notice 

of  appeal  7G 

by  administrator  or  executor...     76 

by  one  of  several  parties 76 

in  proceedings  in  aid  of  execution.  165 

how  served,  )iote 165 

of  injunction,  what  required 189 

of  appeal  from  order  refusing  to 
admit    will    tt)    probate, 

547,  548 296 

of  hearing   of  executors'    claim, 

etc.,  G14 321 

of  appointment   of  executor,  al- 
lowed, 622 323 

of    petition    to    sell    real    estate, 

ordered,  704 356 

of  filing  accounts  ordered,  775....  383 
publication  of  approved,  776...   383 
of  appeal   from  probate  to  com- 
mon pleas  court 383 

Oath 

for  jur}- 444 

for  witness 444 

for  interpreter 444 

for  referee 444 

of  foreman  of  grand  jury 488 

of  grand  juror 488 


532 


INDEX. 


PAGE 

Occupation 
of  land  before  appropriation 391 

Occupying  claimant 

may  have  benefit  of  law  in  ac- 
tions to  recover  real  es- 
tate  252,  253 

proceeding  by,  separate  from  ac- 
tion of  ejectment 254 

how  proceedings  begun 255 

entry  of  application,  465  255 

drawing  of  jury 255 

order   setting    aside    assessment, 

4b(i 25G 

where  waste  and  rents  exceed  the 
value  of  the  improve- 
ment?   256 

judgment  for  balance,  467 256 

where  the  value  of  the  improve- 
ments exceeds  the  waste 

and  rents 256 

occupant  entitled  to  costs 256 

judgment  when  successful 
claimant   elects  to  take 

the  land,  468 257 

when  he  ele<;ts  to  take  the 
value  without  improve- 
ments, 469 257 

Offer  to  confess  jiidcimeuf 

judgment  after,  81 42 

judgment  alter  ofier,  etc.,  ac- 
cepted, 82 42 

judgment  after  offer  rejected,  83..     43 
judgment   after   offer  to   confess 

part,  84 43 

Office 

decree  of  ouster  from,  845 411 

Officer.     Sec  names  of  nrrious  offcers. 

emercement  of 197-200 

after  being  amerced  may  sue  out 

execution,  368 200 

Ope7ii>ig 

of  settled  account  of  administra- 
tor, 658 340 

Opening  minutes 

of  district  court — 

special  term 1 

regular  term 3 

daily  sessions 4 

in  common  pleas — 

adjourned  term 5 

special  term 6 

separate  session 7 

joint  session 8 

daily  session 8 

Order 

defined 10 

final,  defined 10 


PAGE 

Order 

must  be  entered  on  journal 10 

standing,  for  costs 152 

amercement  of  officer  for  failing 

to  execute,  365 199 

in  proceedings   in   aid  of  execu- 
tion     164 

to  be  reduced  to  writing 264 

entered  on  journal 164,  166 

for  arrest,<i-educed  to  writing..  168 

made   at    chambers,    entered    o\\ 

journal 231 

Order  for  sale.     See  Sale. 

to  issue  from  common  pleas,  note...  401 

Ouster 

from  office,  decree  for,  845 411 

decree  of  against  directors,  etc., 

846 412 

and  order  for  new  election,  847.  413 
from    corporation    exercising    il- 
legal power,  850 414 

Ownership 

of  abandoned  road-bed 389 

See  Apjrropriation  of  property. 

Papers 

order  substituting  copies  of,  810..  398 
made  part  of   bill  of  exceptions, 

itutr  1 496 

Parties  to  action 

named  in  full  in  judgment  or  final 

order  10 

indexing  names  of 10,11 

names   of,   added  to  or  stricken 

from  title 15 

real,  in  interest 15 

action  must  be  in  name  of. 15 

name  of,  substituted 15 

order  substituting,  5 16 

insane — 

order  appointing  trustee  for,  7.     16 
becoming  or  discovered  to  be, 

trustee  appointed  for,  8..     16 
trustee  of,  order  removing,  9...     16 
insanity  of — • 

order  for  jury  to  determine,  9ff.     17 
on  disability  of,  action  continues.     19 
substitution  of,  on  transfer  of  in- 
terest      19 

order  making,  of  one  necessarv, 

etc.r. .'..     20 

action     disclosed,     for     want     of 

n  ecessary ^ 20 

new  party — ■ 

made  in  actions  for  recovery  of 

p  r(_)pe  rty 20 

one  necessary  to  controversy...     20 
in  actions  for  recovery  of  prop- 
erty  '. 20 


INDEX. 


)33 


PAGE 

Parties  to  actloti 

one  claiiniiiE;  subject  of  action..     20 
substituted   fur  defendunt  ...     21 
one  ciaiuiing  .subject  of  action. 

20,  21 

made  on  counterclaim 22 

made  on  set-off 22 

made  in  district  court 77 

order  maicins?,  on  distriliution 

of  estate,  600 342 

in- interest,  .sul)stitut('d  for  sbcriff 
in  discrcaion  of  the  <ourt, 

note 22 

name  of  stricUfui   Irom  pieadinjj;..     IJo 

name  of  correctcnl 35 

claim    of,    to    subject    of    actioii 

barred...; 21 

substituted  for  deft^ndanl 21 

death  of,  suggested 41 

when  not  wante(_l,  dismissetl i)7 

case  dismissed  for  want  of  neces- 
sary, 21-') 100 

new  tojutlgnient 14(1 

judgment  making 140 

representative    made,     to    ji.iig- 

ment,  2M 140 

to  judgment,  surety   made,  :i(;7...    I'M 
electing  to  Ui\n;  |>reniises   in  par- 
tition pi'oceedings.      See 
I'lniiiiun. 

must  elect  or  d<'cline,  )i()fe 243 

assignee  of  bankrupt  sub.-titutetl 

for  bankrupt 419 

Part  Hi  on 

master  commissioner    selling    in, 

)u,ie : 243 

decree  for,  should  be  specilic 234 

manner  of  setting  off  dower  i?i...   23.4 

selling  of  life  estate 231,  23,.3 

taxes  to  be  paid,  voir 1.35 

where  no  dower  is  to  he  assigned, 

decree  for,  430fc 235 

decree  for  amicable,  437 230 

witiiout  commissioners,  438..  230 
guardian    may    consent    to, 

noir \ 230 

•counsel  fee  in  proceedings  in 2;'.7 

rule  for 23'.t 

where  dower  is  to  be  assigned — • 

general  decree  for,  439 237 

decree,  when   money  value  in 

lieu  of  dower  asked,  440.  238 
confirmation  where  property  has 
l)een    divided    by  metes 

and  bounds 238 

decree  of,  441 238 

decree  of,  in  amicable  jiartition, 

442 239 

confirmalion  where  property 
could  not  be  divided  by 
metes  and  bounds  240 


PAOK 

Partition 

when  one  party  elects  lo  take 
premises — - 
decree  when    he  has  settled, 

etc.,  443 240 

decree  when  he  makes  pay- 
ment to  sheriff,  444 241 

decree  when  he  is  ordered  to 

pay  all  cash,  445 242 

when  no  one  elects  to  take  tlie 
premises — ■ 

decree  for,  and  sale,  440 242 

sale  confirmed,  etc.,  447 243 

confirmation  and  sale  where?  prop- 
erty could  not  he  divided 
by  metes  and  bounds, 
and  money  value  isgiveu 

in  lieu  of  dower 244 

when    no   one    elects    to    take 

)i  remises — 
decree    for    confirmation    and 

sale.  448 244 

same,  when  dower  or  life  es- 
tate extends  only  to  un- 
divided interest,  451 245 

sale  confirmed,  452 245 

order  for  revaluation  of  premises, 

453 240 

succeeding  sheriff  to  make  deed, 

455 \  247 

Pari)ter 

surviving,  may  apply  for  apprais- 

mont  of  assets 395 

a.ssets  taken  by,  809 395 

artnersh!pt>  394 

apprai-sers    of    assets    appointed, 

800 395 

on  application  of  executor,  807.  395 
inventory,    etc.,    of    iissets    filed, 

808...'.. 395 

assets  taken  bv  surviving  part- 
ner, 809 ■ 395 

Peace  warrant 

discharge  on  failure  of  prosecu- 
tion, 891  447 

discharge  from  recognizance,  892.  448 
order  that  party  enter  into  secur- 
it}'    to    keep    the   peace, 

893 448 

after  conviction  of  misdemean- 
or, 894 449 

Peytnliy 

entries  allowing  on  appeal 78 

not  allowed  on  appeal 79 

allowed   on    affirmanc-e  in  error, 

821 402 

not  allowed,  822 402 


534 


INDEX. 


PAGE 

Pending  case 

arbitration  in 200 

order  for,  371 201 


Feneieniiary 

sentence  sending  to. 


480 


Perpefuation  of  testimony 

order    allowing    examination 

witness,  529 

final  order  of  approval,  530.... 


of 


Person 

decree  changing  name  of,  520. 

Personal  property.     See  .S'rt^e. 
sale  of  by  assignee , 


287 


283 


Petition 

amended — 

filed  by  real  party  in  interest... 

causes  of  action  in,  separately 
stated  

appeal  dismissed  for  want  of 

amended,  for  making  new  parties 
on  distribution  of  estate, 
6(J6 

supplemental,  for  making  new 
parties  on  distribution 
of  estate,  GG6 

Petit  jury.    See  Juror,  Jurors,  Jury. 
regular — 

to  be  full  at  beginning  of  term, 

how  kept  full  

journal  entries  concerning 

entry  on  return  of  venire  for.. 

ordered  to  appear  when 

order  to  fill  panel  of 

order  for  second 

order  for  new 

tiilesmen  for 

array  set  aside 

new  jury,  how  formed 

oath  of.. .5.^ 

Place 

order  for  jury  to  view,  040 

Plea 

in  bastard}^  case  of  "not  guilty," 

and  order  for  trial,  378... 

of     "guilty,"    and    order     for 

maintenance,  381 

in  abatement — 

.sustained,   prisoner  committed, 

934 

prisoner  bailed,  935  

name  corrected  on,  93(j 

of  not  guilty  after  demurrer  over- 
ruii-d.  937 •.   


15 

27 
81 

342 

342 


49 
49 
49 
49 
50 
50 
50 
51 
51 
52 
53 
488 


472 


203 


Plea 

in  bar,  verdict  for  defendant,  etc., 

939..  467 

verdict  against  defendant,  etc., 

940 4G7 

of  guilt  J' — 

and  prisoner  remanded,  947....  468 

and  sen;ence,  942  468 

of  smaller  otiense,  943 468 

of  not  guilty,  944 468 

retracted,  etc.,  945 469 

Pleadings 

time  for  extended 31 

order  for 32 

how  to  be  amended 31,  34 

stricken    from    files    for  want  of 

verification 31 

substitution  of — order  for 31 

redundant  matter  stricken  from..  31 

order  for  making  definite,  etc 32 

filed  by  leave 32 

received  32 

name  of  party  stricken  from  35 

order  fur 35 

payment   of    costs,    condition    to 

amendment 35 

supplemental,  leave  to  file 36 

amended  in  disti'ict  court 77 

amendment  of,  in   case    of  vari- 
ance   90 

judgment  on 135 

entry  of 136 

and  case  referred 137 

and  case  sent  to  jury 137 

in  amei-cement  proceedings 197 

order  substituting  copies  of,  810..  398 
on  reversal  of  justice's  judgment, 

vtde ; 404 

in  proceedings  in  error  from  jus- 
tice, note 404 

Polling  the  jury 56,  477 

Possessicni 

of  real  estate — 

quieting  248 

decree  for,  456 248 

order  for  surrender  of,  458 249 

Posi'nig 

minutes  to  appearance  docket 13 


205  ;  Preface 

I      for  decrees  for  sale 107,108 

I 

465  Pregnancy 

466  of  convict 482 

466 

rrrjudirr 
466,       case  dismis.^ed  without,  213 105 


INDEX. 


535 


PAGE 

Preynises 

decree  for  sale  on 109 

order  to  sell  on,  2'JO 15tl 

view  of,  in  ap])r()priation  case,  or- 
dered, 784 380 

Prea'idlny  judtic 

to  sign  minutes  of  joint  session...        9 
appointment  noted 9 

Prhicipdl  <md  surety.     See  Siircii/. 
certifying  in  judgment  acainst...   *i81 
entry,  515 '. 281 

Prisoner 

order  for  oral  testimony  of SG 

order  for  discharge  of,  32-1 177 

order  for  discharge  of,  in   hab(;as 

corpus,  429  232 

discharge  refused,  430 232 

order  allowing  hail  of,  431 232 

discharged  <>n   demurrer  sustain- 
ed, 938 4G7 

counsel  assigned  for  indigent 4G8 

discharged   hv  examining   court, 

903..'. 453 

admitted    to    hail    hy    examining 

court,  904..' 454 

remanded    to  jail    by  examining 

court,  905..." 454 

found  to  be  insane,  90G 454 

when    not    indicted,    discharged, 

922 4G1 

recognized,  923 4G1 

discharged  for  variance,  927 4G3 

insane — 

order  for  jury  to  try  question, 

928.....' '. 4G4 

entry  of  verdict,  929 4G4 

indijrent,    counsel    assigned    for, 

930 465 

committed  after  indictment  quash- 
ed, 931 4G5 

after    jilea    in    abatement    sus- 
tained, 934 465 

bailed  after  indictment  quashed, 

932.... 465 

after   plea   in    abatement    sus- 
tained, 935 4GG 

discharged,  after  demurrer  to  in- 
dictment sustained,  938..  467 

trial  iii  absence  of,  953 473 

detained  after  indictment  quash- 
ed, 955 474 

discharged,   when  not  tried,  958, 

959 474,  475 

discharge  of,  refused,  9G0 475 

recaptured,  sentenced,  969 481 

death  sentence,  971 482 

insane  or  pre;:nant 482 


PAGE 

Pr'iHoner 

insanity  of,  found,  972 482 

found  not  insane,  973 483 

Privilege  Jrorii  arrest 159 

order  for  discharge,  301 159 

Prizc-fifjhts 

recognizance    not   to  engage   in, 

ordered,  896 449 

accused  discharged,  897 450 

Probate  court.     See  Courts. 

Probate  of  vnlls 

For  titles  of  journal  entries  re- 
la  tine/  to,  sec  pages  290 
and  291. 

order  for,  542 294 

when  last  witness  comes,  543...   295 
when  commission  returned,  544, 

545 295 

refusal  of,  547 296 

of  spoliated  will,  ordered,  552 298 


Proceedings 

against    member 
stayed  ... 


.f      le: 


^lati 


24 


Proceedings  iu  aid  ff  execution 159 

subjecting    money,   etc.,  to   pay- 
ment of  judgment IGO 

decree  subjecting  equitable  in- 
terest   to     payment     of 

judgment,   302 160 

by  examination  of  debtor — 

nature  of  the  proceedings 162 

authority  of  judge  in 163 

authority  of  court  in 1G3,  167 

title  of  case 163,166 

instituted  without    alHdavit  or 

proof 164 

by  whom  issued ,, 164 

orders    to   he    reduced  to  writ- 
ing   164 

entered  on  journal 1G4 

record  of  orders  filed,  etc 164 

copy  of  order  served  as   sum- 
mons     164 

referee  apjiointed  1G4 

when  pr(jceedings  di^mi-'^.^efl....    164 
order  for  defendant  to  appear, 

303 1G5 

notice  to  defendant 1G5 

how  served 165,  IGG 

referee  appointed,  304 166 

institut>d     upon    iitfidavit     or 

proof  of  jiropcrty. 166 

when  commenced IGG 


53G 


INDEX. 


PAGE 

Proceedings  in  aid  of  execution 

order  for  defendant  to  appear, 

305 167 

made  by  court,  30(j 167 

when  commenced  by  an  f)rder  of 

a  rres  t 1 68 

warrant  alternative 168 

when  proceedings  discharged...   168 

order  for  arrest,  308 168 

warrant  for  arrest 169 

order  for  undertaking,  309 169 

order  appointing  referee,  310...    169 
against  third  parties — 

before  judge 169,  170 

order  for  appearance   of  third 
pai'ty,    alter    execution, 

311 170 

same,  before  execution,  312...   170 

form  of  notice 170 

application    of    property  discov- 
ered    171 

order  for  may  be  made 171 

how  enforced 171 

receiver  appointed,  when 171 

order  for  application,  etc.,  313..  171 
when  in  hands  of  third  party, 

314 172 

order  appointing  r'^ceiver,  315.  172 
order  for  receiver  to  sell,  316....  173 

how  sale  approved 173 

order   for   receiver  to    pay  oS 

judgment,  317 173 

order    for    receiver    to    apply 

funds,  818 .'.   174 

minutes  of  the  judge 174 

Process 

person  appointed  to  execute 1,  12 

name  added  to 35 

amercement  of  otlicer  for  failing 

to  execute,  365 199 

Promissory  note 

See  Negoiinble  ■paper. 

Proof 

what  required  in  iudgmcntbv  de- 
fault  '. .' 123 

case  referred,  for  taking 126 

Property 

order  for  jury  to  view 59 

attached.     See  Aifnc/ud  j)roj)erf)/. 
perishable,  order  for  sale  of,  327..  178 
in  hands  of  garnishee,  order  for 

delivery  of. 179,  180 

order  that  garnishee  retain,  331...  181 
sale    of   bv    garnishee,    ordered, 

838 183 

held  by  trustee 196 


PAGE 

Property 

order  for  deposit  of,  361 196 

order  for  delivery  of,  enforced, 

362 196 

of  wife,    husband    enjuined   from 

interfering  with 215 

restored  to  wife,  on  divorce 216 

husband  enjoined  from  disposing 

of,  413 .';  221 

given    for  a  religious  use,  decree 

for  sale'of,  476 262 

discovered    after    inventory  filed 

appraised,  597 316 

personal — 

sale  of  dispensed  with,  GOO 317 

subsequently  ordered,  601 317 

order  for  private  sale  of,  602....   317 
at  less    than    appraised   val- 
ue, 608  317 

sale    of,    in    regular    course    of 

trade 318 

public  sale  alter  failure  of  pri- 
vate, 604 318 

sale  of  confirmed,  609 319 

fraudulent  transfer  of  prevented.  374 

appropriation  of 385 

See  Appropriation  of  prnpcrtji. 

decree  vesting  in  trustees,  888 441 

Prosecuting  attorney 

allowed   to    bring    action   of  quo 

warranto,  842 411 

member  of  bar  substituted  for, 

843 411 

one  of  examining  court,  903 453 

attorney  appointed  to  assist,  916..  459 
order  appointing  assistant,  917...  459 

Prosecution 

case  dismissed  for  want  of,  214...    105 

Protest 

when    cost  of  included    in  judg- 
ment      97 

PubUcatioa 

order  approving 26 

against  unknown  heirs,  order  for 

approved 26 

on  foreign  will  presented  for  rec- 
ord ordered,  550 297 

for  non-resident  executor,  665 342 

of  notice    of  filing    accounts    or- 
dered, 775 383 

approved,  776 383 

Punishment 

for  misbehavior,  384 206 

for  disobedience  of  order  of  court, 

389 208 


INDEX. 


537 


PAGE 

Punishmeni 

for  contempts,  392 209 

Purchaser 

at  judicial  sale  failing  to  pay 154 

4^uashing  an  appeal 

costs  in  case  of. 81 

judgment  for 81 

(Question 

of  fact  not  put  in  issue  — 

order  for  trial  of,  by  jury,  2 13 

verdict,  3 14 

order  referring,  4  14 

of    sanity    of    j'arty,    order    for 

trial  of,  '.»«.' 17 

finding  and  order  on  submitted, 

ti07 342 

submitted   to  probate  judge   by 

administrator,  068 343 

reserved  to  common  pleas,  669.  343 
judgment  construing,  670 343 

(^uietin;!  title  (ntd  ptiysessioit 

by  wiioui  action   brought 248 

issue  not  triable  by  jury 248 

decree,  456 248 

Qiio    Warranto 397 

officer  allowed   to    bring  action, 

etc.,  842 410 

member    of    bar   substituted   for 

prosecutor,  843 411 

order  that  notice  be  given.  844...   411 
decree  of  ouster  from  office,  845..  411 
order   for    deliver}'    of    booiis, 

etc 412 

attachment  for  disobedience  of...   412 
decree  of  ouster  against  directors, 

etc.,  846^ 412 

and  order  for  new  election,  847.  413 
decree  dissolving  corporation  for 

non-user,  848 413 

report  of  tru.stee  approved,  849.  414 
ouster  from  exercise   by  corpora- 
tion   of    illegal    power, 

850 414 

order  that  directors  of  bank  give 

security,  851 415 

bond  approved,  852 415 

judgment  for  defendants.  853 415 

Real  actiotis 247 

to  quiet  title  and  recover  posses- 
sion    247 

See   Quietiuff  title  and  jwssess- 
ion ;  also  see  Possession. 

recoupment  by  vendee,  etc 248 

kSee  Recoupynent. 


PAGE 

Real  estate.     See  Land. 

order  to  subdivide 116 

situated  in  more  than  one  county.  116 
order  for  sale  of,  in  attachment, 

338 183 

how  confirmed 184 

order   for  conveyance  of,   in  di- 
vorce case 216 

title  in  fee  conveyed,  note 210 

as  alimony,  411 219 

quieting  title  and  possession  to...  248 

decree  for,  456 248 

order  for  surrender  ofi458 250 

recovery  of 251 

what  decree  must  find 251 

may  be  tried  ly  jury 251 

recovery  of — 

decree  for,  400 251 

decree  for  defendant,  461 252 

.    verdict  in  action  for 252 

judgment  on  verdict,  462 253 

for  defendant,  may  be  what.  253 
motion  for  new  trial  overruled 
and  judgment  for  plain- 
tiff, 463 253 

when  right  of  termiiiales  dur- 
ing   action,    decree    for 

damage,-,  464 254 

when  tried  by  jury,  forms....  254 
completion   of  contract  concern- 
ing   258 

See  Contract. 
conveyance    to    heirs,  judgment, 

572 259 

order  for  appraisement  of,  by  ex- 
ecutor, 566 307 

by  administrator.  567 307 

sale  of.  by  <'xecutors,  see  iS'«/e 327 

fraudulently  conveyed,  recovered 

by  executor 327 

sale  of,  by  guardian 356 

See  Sale. 

order  for  subdi\  ision  of.  705 356 

leasing  of,  by  guardian 361 

freeholders  appointed  to  report, 

etc.,  717 362 

order  for,  718 362 

of  lunatic,  idiot  or  imbecile  ....  363 
convevance    of,    declared     void. 

'     741 371 

See  Conveyance. 

how  administered  after 371 

sale   of,   bv  assignee,   order   for, 

748 374 

order  for  private,  749 375 

in  common  pleas,  753 377 

sale    of,    completed    bv  assignee, 

751 .' 376 

sale  of,  on  street  assessment.. .420,  421 
conveyance  of.     See  Conveyance..  423 


638 


INDEX. 


Real  party  in  inierest.     See  Parties 

to  actlo7i. 
Receiver 

to  eollect  from  stockholders  and 
pay   judgment    against 

corporation 160 

in  proceedings  in  aid  of  executor 

whien  iippointed 171 

by  whom  appointed 171 

order  appointing,  315 172 

order  for,  to  sell,  310 173 

how  sale  approved 173 

ordered  to  pay    oil"  judument, 

317 r 173 

ordered  to  apply  luiuls,  318 174 

appointed  to  take   possession  of 

attached  property,  326...   178 
to  collect  notes,  due  bills,  etc...  184 

order  for,  339 184 

order  for,  how  drawn 192 

order  for  delivery  of  possession 

of  real  estate  to 193 

his  possession  can   not  be  inter- 
fered with  without  leave 

tif  court 193 

how  suit  brought  against 193 

notice  given  to  whom 193 

order  allowing,  355 194 

order  appointing,  354 193 

ordered  to  bring  suit,  355 194 

ordered  to  invest  money,  357 194 

order  confirming  report  and  dis- 
charging, 358 194 

goods  in  custody  of 195 

See  Goods. 
appointed  in  proceedings  for  dis- 
solution of  corporation, 

398 211 

ordered  to  pay  dividend,  399, 

400 212 

account  of  referred,  401 212 

allowed,  402 212 

of  property  being  wasted,  etc., 

413" 221 


Recognizance 

in  bastardy  case — 

taken,  374 203 

released,  375 203 

new,  ordered,  376 203 

'     forfeited,  377 203 

ordered  in  habeas  corpus,  431 232 

order  that  debtor  enter  into,  765.  381 

filed  and  approved,  766 381 

binding  during  term  when 451 


PAGE 

Recogniza7ice 

new  should  be  taken  when 452 

how  recorded 452 

record  of,  when  taken  by  court, 

899 452 

of  one's  own  recognizance,  900.  452 
order  for  new,  at  end  of  term, 

901 452 

fixed  in  case  of  felony,  902 453 

fixed  by  examining  court,  908....  455 

new,  taken,  910 455 

forfeited,  913 456 

forfeiture  of,  opened  up,  914 457 

of  witnesses  on  change  of  venue, 

947 469 

after  arrest  of  judgment,  986 485 

Recognized  prisoner 

delivered,  and  committed  to  jail, 

909 455 

in  vacation,  911 456 

and   new   recognizance   taken, 

910 455 

in  vacation,  912 456 

Record 

how  waived 139 

order  to  abbreviate 139 

of  copy  of  will  from  other  coun- 
ty, 546 296 

from  other  state,  549 297 

in  second  county,  550 297 

of  foreign  will — 

order  lor  publication,  550a 297 

order  for,  55 1 298 

of  will  destroyed,  copv  admittled 

to,  553 .'. 299 

perfect  transcript  of  may  be  or- 
dered    402 

but  not  an  amendment  of. 402 

diminution  of 402 

See  Dhnrnution  of  record. 

of  witnesses  before  grand  jury.  ..  461 

of  reprieve,  970 482 

introduced    into    bill    of    excep- 
tions    497 

Recorder^  n  office 

decree  to  be  recorded  in. .228,  236,  239 

Recovery 

of  real  estate.     See  Real  estate. 
of  property — 

new  party  made  in  actions  for....     20 
party  substituted  forsheriif  in  ac- 
tion  Ibr 21 

Recoupment 

by  vendee  in  action  for  recovery 

of  purchase-money 249 

decree  finding  lien,  and  for  re- 
coupment, 457 249 


INDEX. 


539 


PAGE 

Recoupinent 

decree  finding  adverse  estate, 
and  surrender  ordered, 
458 250 

same,  and    order  for   paj-ment 

of  balance,  etc.,  459 250 

Redundant  mattcr 

stricken  from  pleadings 31 

Referee 

trial    before.     See    Tr-ial   by   ref- 
ercen. 

order  to  compel  report  of. G8 

report  of.     See  Report. 
in  proceedings    in    aid   of  execu- 
tion   1G4,  105,  166 

order  appointing,  ;5U4,  31U..166,  169 
of    claim    against    executor   ap- 
proved of,  610 319 

report  of  confirmed,  etc.,  611, 

612 320 

set  aside,  etc.,  613  320 

question    submitted    to    probate 

judge,  as,  668  343 

in    matter   of   claim    against   es- 
tate, judgment  on  award 

of,  683 348 

oath  of 444 

Reference 

See    Referee;    Master    comtnifi- 
sioner. 
order  for,  of  question  not  put  in 

issue,  etc.,  4 14 

of  case  in  default  125 

to  take  account 126 

after  default  found,  239 127 

to  take  proof  of  a  fact 126 

judgment  on  report  stating  ac- 
count    126 

judgment    on    report     finding 

facts 127 

after  judgment  on  the  pleadings.  137 
of  question    of    priorities    in    at- 
tachment,  341 185 

of  receiver's  accounts,  401 212 

order  of,  on  claim   disallowed  by 

executor 347 

judgment  on  the  award,  683...   348 

Reformaiion 

of  deeds,  decree,  865 425 

Religious  use 

sale  of  property  given  for,  476...  262 
confirmation,  477 262 

Remayidirig 

from   district    court    to    common 

pleas 79 


PAGE 

Remanding 

in  decree  for  sale 79 

Remittiiur 129 

entry  of 129 

order  for 1 30 

of  part  of  damage,  etc 138 

new    trial  ordered   unless    made, 

etc 139 

Retnoval 

of  ward  to  another  state,  guard- 
ian     355 

of  case   to    U.    S.    circuit   court, 

883 437 

to    district    court    of    another 

r  unty.884 438 

of  case  friiiii  superior  to  common 

pleas   court.  986  492 

rients,  issues,  and  jirofiis 

dower  assigned  as  of. 223 

See  Doicer. 
assignment   of  dower   by  execu- 
tor approved,  etc.,  637...   332 

Repleviii 

when  property  has  been  delivered 

to  plaiutiff. 264 

bond  takes  place  of  )iidp<-ily...   265 
plaintitT  acquires  ownership  of 

property  replevied.. 265 

what  finding  or  verdict  for  de- 
fendant nmst  find 265 

heirlooms  replevied 260 

order   for   sheriff   lo    retain, 

478 265 

in    ca.se    of   judgment    on    de- 
nuirrer   against     plain t- 

♦  iff 266 

what  is  found  thereby 266 

demui-rer  to  petition  sustain- 
ed, 479 266 

and  damages   assessed   for 
defendant  by  the  court, 

and  judgment,  480 267 

and  finding  against  defend- 
ant's right   to   damages. 

and  judgment,  481 267 

and  case  sent  to  jury,  487.  270 
demurrer  to  petition  sustain- 
tained,  judgment  against 
plaintiff,  and    case    con- 
tinued, 482  267 

damages    assessed   for    de- 
fendant   by    the    court, 

483 268 

finding  against  defendant's 
right    to    damages,    and 

judgment,  484 268 

demurrer  sustained,  damages 


640 


INDEX. 


PAGE 

Replevin 

assessed  by  the  court  for 
defendant,  and  judg- 
ment, 485 269 

demurrer  sustained,  finding 
against  defendant's  right 
to  damages,  and  judg- 
ment, 486 269 

demurrer  sustained,  judg- 
ment against  plaintiff, 
and   case    sent    to   jurv, 

488 270 

verdict   for  or  against  de- 
fendant, 489..  .^ 270 

judgment   on    verdict    for 

defendant,  490 271 

judgment        on        verdict 
against  defendant,  491...  271 
in  case  of  plainiitf's   failure  to 

prosecute  his  action 271 

effect  of  default 271 

finding  for  defendant,  dam- 
ages assessed  by  the 
court,     and     judgment, 

492 272 

finding  against  right  of  de- 
fendant to  damages,  and 
judgment  for  costs.  493..  272 
verd'i<'t  for  or  against  defend- 
ant, 494... .7 272 

judgment  on  verdict,  495 —  273 
replevin  certified  from  a  jus- 
tice    273 

when  plaintiff  in  default...  273 

when  certified 273 

when  detVinhmt  to  file  pe- 
tition    274 

damages    assessed   by  the 
court      for      defendant, 

498 274 

finding     against     delend- 
ant's  right   to   damages, 

499 274 

verdict  for  or  against  de- 
fendant, 500 275 

judgment  on  verdict,  501..  275 
in  case  t)f  defendant's  default 

title  necessary,  noie 276 

judgment  for  plaintiff,  dam- 
ages    assessed     by     the 

court,  502 275 

for  nominal  damages,  503.  276 
judgment  for  plaintiff,  dam- 
ages waived,  504 276 

judgment  for  plaintiff,  and 
case  sent  to  jury  on  in- 
quiry of  damages,  505...  277 
in  case  of  submission  of  the 
issue  to  the  court  or  a 
jury — 
trial  of,  by  jury 277 


PAGB. 

Replevin 

trial  by  the  court 277 

finding    by  the    court,    and 
judgment    for    plaintiff, 

508 278 

finding  for  defendant,  609....  278 

verdict  of  jury,  510 278 

judgment  on  verdict,  511 278 

in  part  for  each,  514 279 

proceedings  when  the  properiy  has 

not   been   taken,   or    has 

been  returned  w  the  d>- 

fendant 

action   to   proceed    as    one  for 

damages  only 280 

costs  280 

Repmri 

of  referee — 

when  confirmation  required....  65 

order  to  compel 68 

judgmen.t    on     report     finding 

facts  and  law 68 

after  motion  overruled 68 

judgment  on  report  of,  finding 

facts  69 

after  motion  overruled 69 

set  aside,  new  trial  granted 69 

before  another  referee 69 

of  master  commissioner 70 

of  referees  in  arbitration  confirm- 
ed, etc.,  611,  612 320 

set  aside,  etc.,  613 320 

of  commissioners  in  insolvency...  347 

should  be  confirmed 347 

of  grand  jury  461 

entry  on,  921 461 

Representative 
of  party — 

action  contitiued  against 19 

proceedings  against,  stayed 24 

made  party,  etc 45 

of  deceased  partv  made  party  to 

judgment,  281 149 

Rt  jirieve 

record  of,  970 482 

Reservation 

of   case  in  probate  court  to  com- 
mon pleas,  669 343 

of  case  to  supreme  court,  885 438 

from  special  to  general  term 490 

on  bill  of  evidence,  984 492 

on  motion,  985 492 

Resignation 

of  guardian  accepted,  701 354 

of  assignee  accepted,  etc.,  732 368 

of  one  of  two  assignees,  etc.,  743.  369 


INDEX. 


541 


Restraining  order 

in  proceedings  in  aid   of  execu- 
tion   1G5 

how  granted 188 

its  limitation 188 

no  appesil  from  order  dissolving..  188 

how  enforced 188 

by  whom  granted 188 

endorsed  on  petition 188 

entered  on  journal 189 

order  allowing,  34G 18'.:t 

Rttaxniion  of  costs 143 

order  lor 143 

Return 

of  sheriff  amended 153 

leave  granted,  284 153 

Revaluation. 

of  premises  in  partition  proceed- 
ings, 453 240 

order  to  sell  without,  454 240 

Revivor  of  aciion. 

a  matter  of  right 44 

by  consent 44 

order  for,  91 40 

case  stricken  from  docket  when 

not  revived 47 

same,  after  notice  given 47 

conditional  order  of — 

always  made  when  revivor  not 

by  consent 44 

on  death  of  plaintiff,  88 45 

on  death  of  defendant,  8'J 40 

final  order  of,  90 40 

judsrment  taken  without,  is  void- 
able    44 

suggestion  of  death 44 

representative  nuide  party,  etc,  87.  45 

by  supplemental  pleading 45 

Revivor  of  judgment 

dormant  by  lapse  of  time — 

before  code 147 

continuation  of  former  suit 147 

conditional  order  of,  on  motion.  147 
when   payments    have    been 

made,  277 148 

service  of,  how  made,  note...  148 

final  order  of,  on  motion,  278...  148 
when    payments    have   been 

made,  279 148 

judgment  of.  on  petition,  280...  149 
when  party  dies  before   satisfac- 
tion   149 

representative  made  party,  281.  149 

conditional  order  of,  282 150 

service  of,  note 148 

final  order  of,  283 150 


PAGE 

Road-bed 

appropriation  of  abandoned 389 

See  Appropriation  of  property. 

Rule 

allowed 84 

discharged 84 

judgment  on 84 

in  case  of  contempts 207 

order  allowing,  385 207 

discharged,  388 208 

disobedience  of  punished,  391...  209 

Sale 

order  for,  may  issue   from   wbat 

courts,  note 79 

remanding  cause  in  decree  for....  79 

of  mortgaged  property 106 

may  be  by  special  master lOG 

judgment    for  money  at   same 

time  106 

when  execution  may  not  issue 

on  decree  for 106 

when  execution  may  issue  on 

decree  for 107 

preface  to  decrees  for 107,  108 

on  default,  preface  to  decree....  107 

decrees  for 108-117 

time  for  payment  before,  note..  108 

ordered  on  premises 109 

terms  other  than  cash 109 

German      advertisement     dis- 
pensed with 109 

liens  determined  when 112 

when  situated  in  more  than  one 

county 116 

confirmation  and  distribution...  117 

decree  for 117 

building  association  decrees 119 

See  Building  associations. 
on  execution — 
of  goods  and   chattels,  order   for 

private,  285 153 

of  lands  and  tenements 153 

may  be  set  aside  or  confirmed..  153 

terms  of  can  not  be  modified...  153 

purchaser  at,  failing  to  pay 154 

decree  of  confirmation  of,  288..  154 

on  premises,  ordered,  290 156 

-vacating   satisfaction   of  judg- 
ment, 292 150 

in  favor  of  officer,  293 157 

new  appraisement  ordered,  294, 

295 157 

order  for,  on  time,  205 157 

for    certain    amount,    directed, 

290 158 

fraudulent,  mav  be  declared  void, 

etc....'. 160 

of    mortgagor's    interest   to   pay 

judgment 100 


542 


INDEX. 


Sale 

of  equitable  interest,  to  pay  judg- 
ment   '. 160 

of  perishable   property  ordered, 

S27. 178,  184 

of  property  attached,  order  for, 

etc.,  338 183 

of  real  estate,  completion  of  con- 
tract for... 258 

See  Conivact. 
of  entailed  estates.     See  Entailed 
estaies. 

private  authorized 261 

of  property  given   for   religious 

use,  decree,  476 262 

of  personal  property  by  executor — 

order  dispensing  with,  600 317 

subsequently  ordered.  601 317 

at  private  sale,  602 317 

return  of,  ordered 319 

at  less  than  appraised  value, 

603 317 

in  regular  course  of  trade 318 

public,  ordered  after  failure  of 

at  private,  604  318 

order  confirming,  G09 319 

of    desperate    claim    authorized. 

606 318 

at  private  sale,  607 319 

of   real   estate   by  executors   for 

payment  of  debts,  etc...  327 

in  what  courts 327 

after  fraudulent  conveyance.  ..  327 

proceedings  appealed  from 327 

not    granted,  on    bond   given, 

629 327 

found  not  necessary,  630 328 

where  made,  7ioie 328 

where  there  is  no  dower  to  be 

assigned 328 

on  appraisement  in  inven- 
tory, 631 328 

bond  required  of  executor....  328 
appraisement  ordered,  632...  329 
in  case  widow  has  waived 

dower,  etc.,  633 330 

confirmed  and    decree  for 

sale,  634 330 

where  there  is  dower  to  be  as- 
signed— 
assignment     and      appraise- 
ment ordered,  635. 331 

confirmed  and  decree   for 

sale,  636 331 

assignment  of  dower  rents 
and  profits,  and  appraise- 
ment confirmed  and  de- 
cree for  sale,  637 332 

for  certain  amount  ordered,  839.  333 
private 

decree  for,  641 333 


PAGE 

Sale 

order  for,  after  appraisement 

confirmed,  642 334 

on  report  of  otfer,  643 334 

of  real  estate  by  guardian — 
notice  to  defendant  of  petition 

for,  704 356 

guardian  ad  litem,  in 356 

appraisement  of  premises.    See 

Appraisement. 
decrees  for,  710,  711,  712....  359,  360 

order  for  private,  713 360 

on  report  of  offer  made.  714.  361 
confirmed   and    deed    ordered. 

715 361 

when     widow     has     waived 
dower     bv     metes     and 

bounds,  716 361 

confirmation    and  distribution, 

decree  for,  644 334 

after  private  sale,  645 335 

decree,  where  dower   bj'  metes 
and  bounds  was  waived, 

646 335 

of  equitable  interest  by  executor, 

decree  for,  647 336 

confirmed,  648 336 

of  real  estate  by  assignee,  order 

for,  748 374 

order  for  private,  749 375 

confirming  of. 375 

of  personal  property  bj'  assignee.  375 
order  for  private,   in  course  of 
business  confirming  pri- 
vate, 750 375 

at  public  auction,  after,  etc 375 

completion  of,  by  assignee,  751...   376 
contract  of,  bv  assignor,  enforced. 

752.: 376 

of  real  estate  by  assignee  in  com- 
mon pleas,  753 377 

decree  for  in  district  court,  817...  400 
where    order  for,   to   issue  from, 

note 401 

of  personal  property  on  chattel 

mortgage 423 

may    be    by    master    commis- 
sioner, )iote 423 

governed  by  what  rules,  note...  423 
of  real  estate — 

on  street  assessment 420,  421 

in  courts  of  equity  how  governed, 

note 423 

when  enforced  by  attachment 424 

Sale  hill 

order  for  return  of 319 

Sanity 

of  party  to  action,  order  for  trial 

"  of,  9a 17 


INDEX. 


54J 


PAGE 

Sail  sf action 

of  mortgn;40    ordered  to   be   en- 
tered    117 

of  judgment — 

order  vacatins;,  292 156 

in  favor  of  officer,  293 157 

Sealed  vfrdict 

order  lor 59 

Sennuni 

admitted  to  citizensiiij),  881 43G 

Search  warrnnt 

order  tliat  certain   things  taken 

be  destroyed,  898 450 

[Repc^alod  and  omitted  in  body 

of  book  ] 


Secnrit]) 

order    for    additional,   in    attach- 
ment, 342 185 

for  costs — 
See  Costs. 

Senate.     See  Meinber  of  legislature. 

Sentence 

pronounced  on  verdict,  903 478 

on  plea  of  guilty,  9(J4 478 

teslimonv  given  in  mitigation  of, 

"note  ...:. 479 

forms  of 479,  480 

execution  of,  suspended 480 

may  begin   in  future,  note 480 

for  misdemeanor  suspended,  966..  481 

for  felony  suspended,  967 481 

carrying   suspended,   into   execu- 
tion, 968 481 

of  escaped  prisoner,    when   cap- 
tured, 909 481 

of  death,  of  escaped  prisoner  when 

recaptured,  971 482 

pronounced    after   new   trial    re- 

.     fused,  975 484 

suspended  in  capital  case,  982......  487 

in  other  case,  983 487 


Separate  finding  of  facts  njul  law....      63 


Separate  session 
of  common  pleas  . 
form  of  opening 


Separate  session 

of  closing 7 

daily  sessions  of 8 

openinsi ■' 

closing  8 

Service 

of  summons  set  aside 25 


constructive 

order  approving  publication... 

upon  unknown  heirs 

new,  made  on  new  petition 

ordered  by  publication  in  appro- 
priation case,  782  

Services 

allowance  to  executor,  for  special, 
059 


20 
26 
26 
31 

380 


340 


of  attorney  paid  for,  659 340 

.'<et-qff 

new  party  made  on 22 


Scttle7nent 

by  executor,  time  extended,  598..  316 

St7-eets 

assessment  for  improvement  of...  420 
See   Assessrne7it  for  street  im- 
provement. 
SJierifF.     See  Offcer. 
to  execute  process — 
when  an  inlercs  ed  party,  who...     12 

third  party  substituted  for 21 

party  in  interest  substituted  for..     22 
in  discretion  of  the  court,  note.     22 

return  made  by,  set  aside 25 

may  sell  real  estate  as  special 
master  commissioner, 

note 108 

return   of,  on  execution    may  be 

amended 153 

leave  granted,  284 153 

order  that  sueceedin<r.  make  deed, 

291 '.. 156 

ordered    to    repossess    tiimself  of 

attached  property,  340...  184 

ordered  to  withdraw  levy  fmm 
goods  in  hands  of  re- 
ceiver, 359 195 

amercement  of 197-200 

may  sue  out  execution  after....  200 

succeeding  to  make  deed.  455 247 

Signature 

of  dead  or  absent  witness  to  will, 

how  proved,  o59a  293 

Signi)ig 

mi'iuites  of  joint  session  9 

chamber  entries 9 

journal,  by  judge 10 


544 


INDEX. 


Soldier 

admitted  to  citizenship,  879 436 

Soiifai'i/  confinement 

sentence  of 480 

Special  icrm 

ot  distrigt  court 1 

order  for  put  on  journal 1 

form  of  opening ; 1 

order  for,  made  by  judges 2 

of  common  pleas 'J 

order  for,  character  of (i 

should  u;o  oti  journal'. C 

form  of  opening... 6 

form  of  closing 6 

jurors  drawn  for , -W 

Specific  performance 

decree  for  must  find  what 428 

when  decreed 438 

decree  for,  886 4S8 

Spoliated  iriU 

admitted  to  probate,  552 298 

Sta>/  of  proceedings 

against  member  of  legislature....  24 


unpaid  subscription  to,  subjected, 

etc 160 

distribution    of,  by    executor  or- 
dered, 623 324 

without  bond   being  required, 

624 324 

after  debts  are  paid,  660 340 

Stockholders 

names  of,  how  reported,  etc 160 

judgment  and  execution  against, 
for     judgment      against 

corporation 160 

dividend  to,  ordered.  400.. 212 

enforcing    individual  liabilitv  of, 

''887a 439 

Striick-jitrii.     See  Jurors. 

how  made  up 53 

order  to  summon  bystanders  for..     53 
order    appointing  person    to    act 

in  place  of  olBoer 53 

Subdivision 

of  real  estate  ordered 116 

of  real    estate    sold   by   guardian 

ordered,  705 356 

Suhjeciing 


Subjecting 

equitable  interest  to    payment  of 

judgment 160 

.decree  lor,  302., 160 

Subject  of  action 

how  one  claiming,  made  party...     20 
party  claiming  barred,  when '.     21 

Submission 

of  question  to  probate  judge,  as 
referee  by  agreement, 
668 '.. 343 

SubscriptidJi  to  stock 

subiected  to  payment  df  judg- 
ment, etc 160 

Substitutiiiij 

name  of  I'cal  ]iarty  in  interest 15 

order  fir,  5 16 

guardian    of       infatit     for    next 

friend,  6 16 

name  or  party  on  transfer  of  in- 

teres't 20 

party  claiming  subject  of  action..     21 
one  claiming  subject  of  action  for 

detendant 21 

appraiser    in     sale    by    executor, 

638 


Suggestio)!  of  death  of  partg. 


332 
44 


Suit.     See  Actions. 

against  receiver,  liow  brought...  .  193 

order  allowing,  355 194 

hy  receiver,  order  for,  355 194 

on  bond    of  executor  authorized, 

675 345 

Sunnnoi/:i 

service  of,  set  aside 25 

how  served  upon  unknown  heirs.  26 

amended  must  beserved 35 

name  added  to 35 

constructive — 

new  trial  after 145 

Superior  court 
See  Courts. 

Suppleiaeutal  pleadiiigs 

leave  to  file 36 

action  revived  by 45 

Supplemev  tary  proceedings 

See  Proceedmgs  in  aid  of  exe- 
cution. 


Surety 


money  to  payment  of  judgment.  160  |      for  costs;  judgment  against. 


142 


INDEX. 


545 


.S-^rety 

officer  made   party  to  judcjmt'nt 

of  amercement,  307 199 

certifying  in  judgment  which  is 
principal      and      which 

surety 281 

entry,  515 281 

judgment  in  favor  of,  for  plaint- 
iff failing  to  jjrosecute 
principal,  51ti 281 

on    bond    of  administrator,  order 

releasing,  671 344 

may  have  boiid  nf  indemnity 345 

additional  on  guardian's  bond  or- 

•  dered,  Gi)l 352 

released,  new  bond  ordered,  699..  354 

order  releasing  from  bond  of  as- 
signee, 739 ......;....  37Q 

Surveyor — 

guardian  authorized    to    cmplov, 

705 .*..   356 

Survivor 

authorized  to  complete  contract 
for    sale    of    real    estate, 

470 258 

Talesmen 

when  and  how  summoned 51,  53 

who  may  not  be 51 

order  for  venire  for,  etc 51 

when  array  set  aside 52  I 

entry  on  return  of  venire  for 52 

selected  by  the  court 5:; 

for  grand  jury,  order  for 45J< 

Taxefi 

what  to  lie  j>aid    from    proceeds 

of  sale,    118.  nolr 155 

what    paid     in     partition     cuses, 

nofr 155 

order  for  })ayment  of.. .241-248,  24G 

decree  enjoininsj   illegal    lew  of, 

517 r T ! 282 

decree  enioining  collection  of  il- 
legal, 518 282 

judgment  for  recovery  of,  illegal- 
ly assessed,  ol9 T....  283 

special  order  for  auditor  to    lew, 

841 ."..  410 

Temporarii  injimctioii 
See  Injunction. 

Tender 
on  contract  for  payment  of  mon- 
ey  ." 39 

judgment  after 39 

on  C(intract  for  payment  of  other 

article  than  money.. 40 

judgment  after  for  assessed  val- 
ue      40 


PAGE 

Tender 

judgment  after  allowing   per- 
formance    4Q 

judgVnent  when  not  sufficient..  40 

verdict  after,  assessing  value...  41 

judgment  on  verdict 41 

verdict  finding  insufficient 42 

Terms  of  court 
district 

contiouing  of 1 

special 1 

order  to  put  on  journal 1 

form  of  opening 1 

order  for,  made  by  judges...  2 

regular 2 

form  of- opening 2 

of  closing 4 

cornytioii  plens 

adjourned •'> 

order  for,  where  entered 5 

order  for 5 

form  of  opening 5 

closing  of ..  5 

special 0 

order  for  character  of. 0 

should   go  in  journal.! 6 

form  of  opening '5 

of  closing 6 

Testimony 
arrest  of,  from  jury.     See  Arrest 
of  fe.stiminiy  froiii  jury. 
taken  before    re:eree  reduced   to 

writing 67 

taken    by    master    commissioner, 

when  used  as  deposition.     71 
of  prisoner — 

(>rder  for  oral 86 

perpetuation  of 287 

order  allowing  examination  of 

witness,   529 287 

tintil  order  of  approval.  530  ...   288 
of  one  witness  taken   on  will  be- 
ing   presented    for    pru- 

bale,  539 293 

as  to  signature  of  dead  or  absent 

witness,  taken.  539^/ 203 

commission  to  take,  of  witiie.~>  to 

will,  540 293 

after  one  sworn,  541 294 

of  witnesses  taken  and  will  pro- 
bated, 542  294 

of    last,    witness    coming,    543, 

545 295 

commission  to  take,  951 473 

may  be   given    to    mitigate    sen- 
tence, note 479 

when  to  be  set  out  in  bill  of  ex- 
ceptions, ?iote 493,  494 

exceptions  to  ruling  out 495 

to  refusal  to  receive 496 


546 


INDEX. 


Time 
for   settlement   by   executor,  ex- 
tended, 598..'. 316 

for  presenting  claims  to  commis- 
sioners in  insolvencj' ex- 
tended, 677  '3-46,347 

Title 

of  case  put  at  head  of  entry 10 

of  ex  parte  case 11 

of  cause,  may  be  changed 15 

of  entries  in  contempts  of  court..  207 
to  real  estate — 

quieting  of 248 

decree  for,  456 248 

defective,   order  for  -reconvey- 
ance, 458 .'..  250 

decree  quieting  independent,  in 

action  tor  recover\ ,  461.  252 

alien  must  renounce,  882 437 

of  case  in  criminal  procedure 446 

of  case  alter  name  corrected 466 

Tou->i 

dec.-ee  eluinging  namb  of,  521 284 

Transfrr 
fraudulent,  prevented 374 

Transo'ipt 

failure  of  appellant  to  fik  in  com- 
mon pleas 7'.i 

perfect,  may  be  ordered. 402 

order  for,  823 403 

order  for,  complete,  823  403 

Tr(n/e 

sale  of  property  in  regular  course 

of 318 

Trial 

of  question  not  put  in  itsue 13 

order  t\>v.  by  jury,  2 13 

verdict 14 

of  question  of  >;inity,  order,  9rt..  17 

by  the  court 62 

judgment  (MiU-red  when    62 

what  Bndini;    inadt.' 62,63 

findintron  i<siii!  triable  only  by 

the  C'lurt 63 

finding— jury  waived 63 

separate,  of  lact  and  law 63 

by  referee> 64 

how  conducted 65 

report  on 6o 

review  of  referee's  decision 65 

appeal  vacates    rejiort   of    ref- 
eree    66 

order  of  relerence  lor  trial 67 

order  of  reference  to  asi-ertain 

and  report  facts 67 

substituting  referee 67 


Trial 

order  to  compel  report  of  ref- 
eree      68 

after  motion  overruled 68 

judgment    on     report     finding 

facts 68 

afti'r  motion  overruled 69 

repirt  set  aside,  new  trial 69 

before  another  referee 69 

by  master  commissioners 70 

how  conducted,  etc 70 

appeal  from 70 

See  fuither.  Muster  covunis- 
siouer. 
order    for  in    bastardy  case,  378, 

379 ". 203,  204 

separate,    of   parties    jointly    in- 
dicted, note 469 

of  capital  offense 470 

jury  formed.  948 471,472 

in  prisoner's  iibsence,  953 473 

order  for  separate,  954 474 

new  granted,  974 484 

refused,  975 484 

Trust 
may  bi^    executed    by  trustee   of 

foreign  will,'563 302 

by  li-ustee  appointed  by  foreign 

court,  564 '. 302 

■/;■/■.-''■■• 

.'luLM-      appointing,     for      insane 

party.  7.; 10 

order    appointing,   for   paity    be- 
eonii;)g,  or  discovei'ed  to 

be   in>ane 16 

order  reinovini;,  9 17 

property  held  by 196 

order' for  deposit,  361 196 

delivery  of,  enforced,  362 196 

vacancy   in    board    of,    dechtred, 

'  4(4,  405 21:!,  214 

new,  in  board  of,  ap|iointed,  405..  214 
appointed  in  decree  foi-  alimony,.  220 
appointed  in    cash  of  ^u !e  oi   en- 
tailed estate.  474 261 

order  apiiroving  bond,  475 262 

testamentary old 

appointed  under  will,  561    Ijiii 

new  one  ajipointed.  5(i2 301 

of  foreign  will  authorized  to  exe- 

^  ente  trust,  5f.3 302 

apjiointed   by    foreign   court,  au- 
tlioi'ized  to  execute  trust, 

564 302 

under    foreign     will     appointed, 

565 302 

of  non-residents 364 

order  appc)inting,  724 364 

ordered  to  pay  money  over  to 

foreign  guardian,  725....  365 


INDEX. 


547 


Trustee 

generally,  and  their  accounting...  365 

entries  relating  to,  how  made..  3C5 
involuiilarv  assignments — 

appointed  on  assignee  being  re- 
moved, 730 oiJ8 

on  assignee  resigning,  732 3iiH 

on  death,  etc.,  ofa.ssignee,  734..  369 

additional,  ai)|)oinied,  735 3Gli 

day  fixed  I'or  election  of,  736...  37U 
chosen    by  creditors  approved 

and  tippointed,  737 370 

order  for  removal   of,  738 370 

appointed,  iti  case  of  convey- 
ance hciiii:;  declared  void, 

741 372 

duties  of 378 

by  probate  court.  743 373 

decree  vtisling  property  in,  888...  441 

Under  taking.     See  Bond. 

order  for  new  in  appeal 82 

in  proceedings  in  aid  of  execution 

order  for,  309 IDO 

Unknown  /leir.'^ 

order  for  publication  against 26 

nuist  be  complied  with,  note....  2ij 

publicatit)n  against,  approved 26 

Usr 
religious,  decree  for  sale  of  prop- 
erty given  for,  476 262 

Vdcnncu 

in  board  of  trustees  declared,  401, 

405 '. 213 

Vacathiff 

satisfaction  of  judgment.  202 15f'( 

in  favor  of  officer,  293 157 

VdCd^ion 

entries  in .^ 9 

form  of 9 


Venire 

for  petit  jury,  when  returned 44G 

for  grand  jurv,  entry  on  return 

of,  915 458 

special  for   grand  jury  ordered, 

915 458 

entry  on  return  of 458 

in  capital  case,  entrv  on  return 

of,  948 .' 471 

Venue 
change  of.     See  Change  of  venue..  469 

Verdict 
on   question    of   fact    not    put  in 

issue,  etc.,  3    14 

entry  on  return  of 56,  57 

filed    with   clerk   and  eiitcied  un 

journal,  noie 50 

general  and  special 58 

must  find  what 58 

forms  of. 58 

general,  for  damages 58 

general,  for  defendant 58 


Vuluc 
of  estate,  estimate  of  filed  by  ex- 
ecutor, 566 

by  administrator,  567 


Variance  

developed  on  the  trial 

material,  amendment  allowed  .... 
immaterial,  amendment  allowed  . 
prisoner  discharged  for,  927 

Ve7idor's  lien 
decree  for  sale  on,  887 


Ve7iire 

order  for  issue  of  to  coroner 

for  grand  jury,  when  returned... 


307 
307 

89 
89 
90 
90 
463 


440 


446 


special  ■)o 

general,  willi  special  finding...  59 

sealed 59 

order  fur 59 

when  judgment  entered  on 133 

judgment  on  special 133 

forms  of  judgment  ()n 133.  134 

judgniiMt  notwithstanding 135 

. .f  guilty  iti  Ipiistardy  case,  380 204 

in  replevin  csise — 

must  find  wl)at 265 

ferms  of 279 

entry  of,   in    appropriation   cum'. 

786 387 

general  entry  on  I'eturn  of  961...  476 

forms  of. 478 

Verificniinn  of  plcaduifi 31 

want  ot,  cause  for  striking  plead- 
ing from  files  31 

certificate  of,  amended 34 

Vietc 

of  property,  order  for 59 

of  premises  in  appropriation  case 

ordered,  784 386 

of  place,  t)rder  for,  949 472 


Vouc  Iters 
examined  and  allowed.  653.  .. 


338 


Wiiiver  of  ji'ri/ .i .'. —     63 

Warrant  of  attorneij 130 

Womnit                                        ,-•■■' 
in  proceedings    in    aid    of  execu- 
tion     168 


548 


INDEX. 


PAGE 

Warrant 

alternative  to  order 168 

where  issued,  and  who  by 168 

form  of. : 169 

Waste 
iudgment   of,    asrainst    executor, 

^     "         617 1 322 

when  amount  can  not  be  ascer- 
tained, 618 ,  322 

Wearing  apparel 
decreed  to  wife 217 

Widow 
dower  of.     See  Dower. 
waiving    dower    by   metes    and 

bounds,  7iote 237 

must  be  notified  of  will  being 
presented    for     probate, 

542 204 

election  of,  under  will 29';) 

citation  for,  554 299 

entry  of  election,  555,  55t3..299,  300 
commission  issued   to   take   of, 

557 300 

when  widow  unable   to    make, 

559 301 

election  entered  for,  560...   301 
letters  of  administration  granted 

to,  567 807 

declining  administration,  568 307 

allowance  of,  set  otf,  588 313 

increased,  589 313 

diminished  314 

waiving  dower,  sale  of  real  es- 
tate  .■ 3.30 

waiving  dower  by  metes  and 
bounds,  in  sale  by  guard- 
ian, 706 357 

asking    for    dower    in    property 

sold  by  guardian 357,  358 

-Wife.     See  Married  rromev. 

of  idiot,  lunatic,  or  imbecile 363 

of  man  joining  certain   religious 

sects,  873 432 

decree  giving  property  to,  874.  433 

Will 

contest  of. 285 

court  may  not  set  aside,  without 

jury 285 

order  making  up    issue   for  jury, 

523 285 

verdict  of  jury,  524 286 

judgment  on   verdict,  525 286 

order  in  district  court  for  re-trial 

of  the  issue,  526 286 

Jor  titles  of  journal  entries  relni- 

ing    io    wills,    see    pages 

290  and  291. 


PACK 

Will 

admitted  to  probate,  542 294 

when  last  witness  comes,  543....  295. 
when  commission  is  returned,  544, 

545 295 

from  other  counties  in   Ohio   ad- 
mitted to  record,  546 296 

from  other  state  admitted  to  rec- 
ord, 549 297 

copy  of,  admitted,  etc.,  650 297 

foreign — 

publication  ordered,  550a 297 

admitted  to  record,  551 298 

spoliated 298 

admitted  to  probate,  552 298 

when  record  destroj-ed,  553 299 

election  of  widow  under 29^ 

See  Election. 

trustees  appointed  under,  561 301 

foreign — 

trustee   of  authorized   to   exe- 
cute trust,  563 302 

trustee  under,  appointed,  565...  302 
mav  dispense  with  bond  of  exec- 
utor, 566 307 

being  proved,  former  administra- 
tion revoked,  584 312 

order  construing  question  arising 

in,  670  343 

guardian    named    in,    appointed, 

686 350 

order    on    appeal     admitting    to 

probate,  889 442 

refusing  to  admit  to  probate,  890.  443^ 

Wif/iess 

can  not  recover  fees,  when 84 

rule  for  allowed 84 

discharged 84 

judgment  on 84 

attachment  against 84 

order  for 85 

discharged 85 

judgment  on  attachment 85 

proceedings  against  and  ]Hiiiish- 

ment  of 85 

refusing  to  be  sworn  85 

discharged  from  imprisonment...  86 
commission  to  take  deposition  of.  87 
order  for  (examination  of,  to  per- 
petuate testimony.  529...  287 
to  will,  testimonv  of,  taken,  539, 

542 ! 293,  294 

in    case    of   death    or   absence, 

539r( 293 

commissiim   to  take    testimonv 

of,  540 .'.  293 

after  one  sworn,  541 294 

See  Comniissio)i. 

if  infirm  or  feeble 294 


INDEX, 


549 


H'ltneaa 

liuit     urii)     coming,    Uxliroony 

taken,  bi.i 29& 

oath  of. 444 

recognized  to  HpjM'ar,  etc.,  904....  464 
puniHiiud  for  rciufting  to  anftwor 

b.'furu  grand  jury,  !tl8...   46'J 

record  of,  beforn  grand  jury 4C1 

rufiignizuncu      of,      takiMi.      947, 

960 4GW.474 

of  prisoner  in   piMiitunliary,  etc., 

•JW) 473 

commiMion    to    take    loKliniony, 

yr,! 473 

prisoner    dischargi'd    to    b«H-ome, 

%•-' 478 

]l'iiin(i}i 
tiinrried.     S«*e  Mtirrirt/  toomrn. 

inKano,  dower  of  diM-harged 228 

See  J)uwrr. 
entry  llnding  insanity  of,  420 228 


order    uj  '-ommiuionflr 

.>3l 288 

order  laying  <>il  dutrict*  in  coun- 
ty. 632 289 

U'reekn 
order    appointing    commiMioi"  r 
of,  681 

Wrtt 
of  execution.     See  Execution. 

Writ  of  poue-uion,  not* 117 

WritxHy     Soo  Doeumrnls. 

Written  itulrumrnl 
decree  correcting  error  in,  628....  208 


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